Breaking TPS legislation, is it really worth it?

John Mitchison examines a recent case where TPS legislation was broken, the consequences for the company in question and offers tips on how to avoid a similar fate.

In March the Information Commissioners Office (ICO) issued a £90,000 fine to a company that harassed the public with thousands of unsolicited marketing calls.

The ICO and the Telephone Preference Service (TPS) received nearly 2,000 complaints about DM Design, a kitchen design company based in Glasgow. The company consistently failed to check whether individuals had opted out of receiving marketing calls – in clear breach of the law – and responded to just a handful of the complaints received.

The monetary penalty was the first time the ICO has issued for a serious breach of the Privacy and Electronic Communications Regulations (PECR) relating to live marketing calls.

Companies such as DM Design are causing harm to reputable telemarketers who follow the highest standards of best practice.  With the ICO stating that “they have every intention of taking further enforcement action” it will likely mean further fines and significant damage to the reputation of the companies that are flouting the law.

So, what can you as telemarketers do to avoid DM Design’s fate and ensure that you comply within the law?

Screen your lists against TPS

It is a legal requirement to screen lists of phone numbers to be used for telemarketing against the TPS register according to PECR.

PECR prohibits organisations from making unsolicited live sales and marketing calls to individuals registered on the TPS. The only exception is where the person has given their consent to a specific named organisation to be called.

Organisations must also screen against their own internal suppression files. This will remove individuals who do not wish to be contacted by unsolicited live sales or marketing calls from your lists.

Accurate and up-to-date data lists

Data lists must be screened against the TPS register no more than 28 days before any unsolicited calls are made and  data purchased from a third-party supplier must have been screened against TPS no more than 28 days prior to its supply. Due diligence must be carried out on your third party suppliers with supporting evidence of screening provided. If the data is not screened, you need to screen your lists against the TPS register yourself.

Managing the ‘do not call’ list

Telemarketers are obliged to manage their own internal suppression file.  The file, or  ‘do not call’ list, should contain the details of people who’ve requested not to be contacted by your organisation. Lists need to be screened against this suppression file to respect the opt-out decisions of individuals.  Organisations need to have a process in place that records these requests from customers. The fact that DM Design was not fulfilling these obligations was a major factor in the ICO’s decision.

Well trained staff

Staff training is integral in keeping employees aware of their TPS and internal suppression file responsibilities.  Screening your data lists internally against the TPS register and your own suppression file is the best way to guarantee that your organisation does not contact anyone who has opted out. Additionally, keeping up to date with the latest legal and TPS updates is essential so that your organisation is aware of its requirements and any changes. DMA members are kept up to date through the monthly DMA legal newsletter.

Why some telemarketers aren’t afraid to break the law

Not all telemarketers follow the law or the TPS regulations.  Some organisations use inadequate or incorrectly implemented screening processes. Others may not fully be aware of their obligations.

Some telemarketers are not carrying out adequate due diligence on their third party data suppliers to make sure that the data that they are purchasing is being properly screened or permissioned. All third-party data needs to be screened against the TPS register even if a data supplier claims that the data has been screened.

Most significantly, there are a number of unscrupulous organisations who chose to ignore the regulations and the wishes of consumers. These companies do not invest in a TPS licence and often withhold their identity when calling to avoid investigation.

Most importantly companies weren’t afraid to break the law because little or no action was taken by the ICO to stop  them  from operating outside the law.

DM Design could have avoided its fate and reputational damage if they operated within the law and were TPS compliant.

Now the ICO is actively pursuing telemarketers who flout the law, and are looking to exercise their enforcement powers by hopefully issuing further monetary penalties – not complying could prove extremely costly to both an organisation’s reputation and finances. Do you want to take the risk?

John Mitchison

John Mitchison

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John Mitchison is the Head of Preference Services, Legal and Compliance at the Direct Marketing Association. Prior to joining the DMA, John was Client Services Manager for Acxiom where he built an in-depth knowledge of TPS data, telephony processes and procedures. Prior to joining Acxiom John worked for the Telegraph as Direct Marketing Production Manager.

May 30, 2013

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