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How do we comply with the rules on live marketing calls?

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In detail

When can we make live marketing calls to people and businesses?

In many cases you don’t need consent under PECR to make live marketing calls. You can make live marketing calls to people and businesses when:

  • they have not previously objected to your live marketing calls (you should keep a ‘do not call’ list of those who ask you not to call and check against this list);
  • their number does not appear on the TPS or CTPS registers (unless they agreed to your calls);
  • they give their consent for calls about claims management services; or
  • you are a trustee or manager of a pension scheme or FCA authorised for live calls about pension schemes, and you either have consent or meet a strict criteria.

When collecting phone numbers from people, you should clearly explain to them that you want to use it to make live marketing calls. They cannot object if they are unaware of your intention to make such calls to them. This links to the fairness and transparency obligations in the UK GDPR. Under data protection, you must provide this information if you are using someone’s personal data. See the section What do the data protection rules mean for live marketing calls? for further information.

When you collect people’s phone numbers from them, you should make it easy for them to tell you that they don’t want your live marketing calls.

It is important to remember that any existing TPS or CTPS registration, or previous objection, overrides those customers who do not object to your calls. This means you must check all numbers against these registers and you cannot call any number that appears on these lists. Likewise, you should check numbers against your own ‘do not call’ or suppression lists (see Can people object to our live marketing calls? for more information).

It‘s only possible to override an existing TPS or CTPS registration or previous objection if the customer specifically tells you they agree to your calls. See the section When can we call numbers registered on the TPS? for more information.

If you want to make live calls about claims management services you must have consent. You may also need consent for live marketing calls about pension schemes. You may also decide that you want to seek consent for your live marketing calls even if PECR does not require it. You can seek consent for general live marketing calls and you may decide that using consent for your live marketing calls suits you better. If you are considering using consent, see the section What is consent? for further information.

There is certain information you must provide when you make live marketing calls. See the section What information must we provide when making live marketing calls? for further information.

Also, people can change their mind and decide they no longer want your calls. See the section Can people object to our live marketing calls? for more information.

Can we use bought-in lists or publicly available phone numbers to make live marketing calls?

You may want to make live marketing calls to people or businesses that do not already have a relationship with you, such as prospective customers or supporters.

Examples of sources of such information include:

  • telephone marketing lists obtained from third parties;
  • telephone directories; or
  • other publicly available sources such as numbers listed online.

The normal PECR rules apply even if you obtain the telephone numbers from other sources. So, for example you must still:

  • check numbers against the TPS or CTPS registers;
  • check numbers against your own ‘do not call’ lists;
  • have consent for claims management services marketing calls; and
  • meet the strict criteria for marketing calls about pension schemes.

Just because a telephone number is publicly available or appears in a telephone directory does not mean it overrides a TPS or CTPS registration. It also does not override a previous objection to your calls.

Example

An organisation obtains a directory of telephone numbers that it wants to use to make live marketing calls. Before making any calls, it checks the numbers against the TPS and its own ‘do not call’ lists.

As several of the numbers in the directory appear on the TPS and its own list, the company doesn’t call these numbers. It makes live marketing calls to the remaining numbers, making sure to display its own contact number.

If you get a telephone marketing list from a third party and they claim to have checked it against the TPS or CTPS, you should make sure that this happened recently. It can take 28 days for a TPS or CTPS registration to become active. This means that if they did the check more than 28 days ago, then you may inadvertently call numbers where the registration has become active. See the section What is the Telephone Preference Service? for further information.

Likewise, if the third party says that the list is of ‘consented’ numbers, you must make sure that the consent is valid. This includes ensuring it specifically covers you making live marketing calls. See the section What is consent? for further information.

You are responsible for making sure you comply with PECR before you make the calls. If you have any doubts about the lawfulness of a telephone marketing list being offered, you should not use it. See the section Who is responsible for complying with the rules on live marketing calls? for further information.

If you are satisfied that you can make the live marketing calls, you should have a process to deal with anyone who asks you not to call again. See the section Can people object to our live marketing calls? for more information.

There is certain information you must provide when making live marketing calls. See the section What information must we provide when making live marketing calls? for further information.

You also must make sure that you comply with data protection when personal data is involved (eg if the list of telephone numbers includes people’s names). See the section What do the data protection rules mean for live marketing calls? for further information.

When can we call numbers registered on the TPS?

In general you can’t make live marketing calls to numbers registered on the TPS (or CTPS). But there is an exception to this.

Regulation 21(4) says:

“Where a subscriber who has caused a number allocated to a line of his to be listed in the register kept under regulation 26 has notified a caller that he does not, for the time being, object to such calls being made on that line by that caller, such calls may be made by that caller on that line, notwithstanding that the number allocated to that line is listed in the said register.”

This means that if you want to call a number registered with the TPS or CTPS, the subscriber must specifically tell you that they want your marketing calls. This overrides their general objection to such calls.

PECR doesn’t use UK GDPR consent requirements here. However, there is a standard that you need to meet to override a TPS registration.

This standard means that, in practice, you are seeking ‘consent’ because the requirements are very similar (for more information on consent, see What is consent?). For example:

  • the subscriber needs to tell the caller that they don’t object to its calls. This means that their notification must contain your name. It should be clear that it is live marketing calls you want to make (eg the specific and informed element of consent);
  • the subscriber has to ‘notify’ the caller. This means that the subscriber must give a clear signal that they agree to your live marketing calls (eg the unambiguous indication element of consent);
  • ‘notifying’ the caller also indicates a positive action or proactive step by the subscriber (eg clear affirmative action element of consent) and that it is their free choice to do this (eg the freely given element of consent);
  • the subscriber is telling the caller that they don’t object to the calls “for the time being”. This means that they can change their mind about receiving your live marketing calls (eg consent can be withdrawn); and
  • in order to prove that the subscriber notified you, which allows you to call their TPS registered number, you need to have a record of it (eg you must be able to demonstrate consent).

Example

A company collects a customer’s contact details verbally. During the conversation, the company asks if they would like to receive live direct marketing telephone calls from it. The customer clearly verbally agrees to such calls.

Assuming this notification by the customer satisfies PECR, the company doesn’t need to check this number against the TPS or their own ‘do not call’ lists. This is because the customer notified it that they agree to such calls.

It is not enough that someone simply failed to object to past calls, or did not take positive steps to opt-out of your calls. For example, you can’t assume that failing to click on an opt-out, or not replying to an email inviting them to opt-out, is sufficient notification. They must take a proactive step to ‘notify’ you that they wish to receive your live direct marketing calls.

Example

A company collects contact details using an online form and provides a tick box for people to use if they wish to opt-out of the company’s live direct marketing calls.

The company checks the phone numbers of those who didn’t opt-out against the TPS and its own ‘do not call’ list. It discovers that a small amount of these numbers are registered with the TPS.

Although these people failed to opt-out, this doesn’t constitute notification that they do not object to receiving live marketing calls. Therefore, this doesn’t override their TPS registration. The company doesn’t make the calls to these numbers.

If someone you called in the past subsequently registers their number with TPS or CTPS, you can’t make any more direct marketing calls to them from that point. Even if they have not specifically objected to your calls before, registration acts as a general objection that you must respect. You can only call that TPS-registered number again if the subscriber had already specifically notified you that they wanted to receive your marketing calls. If so, the fact that they later register with the TPS does not override that specific agreement, and you may continue to call them (assuming they don’t change their mind about your calls).

Example

An organisation has previously called a supporter to fundraise. The supporter never specifically objected to receiving the calls, nor did they specifically tell the organisation that they did not object or agree to the live direct marketing calls.

When undertaking its regular checking against the TPS, the organisation notices that the supporter has now registered their number. The organisation might be confident in light of its past relationship with them that they would not object to further calls. However, the organisation would breach PECR if it continues to make live marketing calls to that person. The organisation stops making live marketing calls to them.

You may be able to make people aware of how to update their direct marketing preferences. See the section Can people object to our live marketing calls? for further information.

You also need to know about the data protection implications, if you are processing personal data to make live marketing calls. See the section What do the data protection rules mean for live marketing calls? for further information.

Can people object to our live marketing calls?

Yes. People can object to receiving your live marketing calls. They can also change their mind and decide that they no longer want your calls. PECR specifically uses the words “for the time being”. This means that they can change their previous preference.  

In short, you must not make live marketing calls:

  • to anyone that has objected to this type of contact from you;
  • to anyone that has objected by registering their number with either the TPS or CTPS (unless you have their agreement to do so); and
  • based on consent, if they withdraw that consent.

Under PECR, individual and corporate subscribers can object to your live marketing calls. If they object, you must stop or not start marketing them by this method. You should have a process in place to deal with anyone who tells you they do not want your marketing calls.

The TPS and CTPS act as a general objection to receiving live direct marketing calls. These are statutory suppression lists or ‘do not call’ lists. You must respect the objection and not make live marketing calls to the numbers that appear on these lists, unless they agree to your calls. See the section When can we call numbers on the TPS? for further information.

It's important to remember that people are free to change their minds, even if they previously consented to your live marketing calls (eg because PECR requires consent or you chose to seek consent). They can choose to withdraw their consent to your live marketing calls at any time. If they withdraw consent, you must stop making live marketing calls based on that consent.

If there is an objection, opt-out or withdrawal of consent you should add the number to your ‘do not call’ or suppression list. Don’t just delete all record of them. This means you can check any new direct marketing lists against your suppression list. This makes sure that you respect people’s wishes and helps prevent you from inadvertently breaching PECR by calling someone who doesn’t want you to.

Example

A company makes a live marketing call to a number that is not on the TPS. The person who receives the call asks the company not to call them again. The company simply deletes their number.

The company obtains a further list of telephone numbers which it checks against the TPS. It makes marketing calls to the remaining numbers on the list. However, it turns out that one of these numbers belongs to the person who previously told the company not to call.

The company has therefore breached PECR by calling this number. However, if the company used a suppression or ‘do not call’ list, they would have avoided this breach. This is because the company could have added that person’s number to its list. Then, it would have screened their number out when it checked numbers against the list before making the calls.

You may be able to make live marketing calls to someone who has previously withdrawn their consent or objected, but only if they consent to your calls in future.

As people may want to get your live marketing calls at a later date, you may wish to make them aware of how they can do this. For example, when they object you could confirm that you won’t call them again and advise them of what to do if they change their mind. However, you must not require them to take action to confirm their objection.

People also have data protection objection rights if you are using personal data when making live marketing calls. See the section What do the data protection rules mean for live marketing calls? for more information.

Further reading