DAVID HICKSON's SILENT CALLS BULLETIN

9 August 2006

The Stop Silent Calls Campaign goes International

The alternative to Ofcom

The regulation being breached

Summary

Further Action

Contact details

I have today responded to an invitation to register a formal complaint about Silent Calls with the Data Protection Commissioner of Ireland.

The company responsible for a Silent Call made to me from a call centre on the island of Achill in Co Mayo has confirmed that it uses the number I obtained by dialling 1471 after receiving the call - 0 353 98 20200 - for the purpose of making direct marketing calls.

The company is based in Scotland, claims to be "the UK's leading outsourced contact centre service provider", has three call centres in Ireland and makes calls to both countries.

I reported the matter to Ofcom, but was advised that it will be taking no action in response to the evidence I have presented. Ofcom says that it will wait for many others to show the same resourcefulness that I have had to show in order to be able to register a complaint about this company before it considers taking action, regardless of the likely scale of the public nuisance being caused.

As Ofcom's Irish equivalent "ComReg" does not have powers equivalent to the "persistent misuse" powers held by Ofcom, citizens of Ireland need another way of dealing with Silent Calls.

As Ofcom has not yet used these powers to cause anyone to stop making Silent Calls, we may have to consider a similar approach in the UK.

The alternative to Ofcom

There is an alternative way of dealing with some Silent Callers, that could be used by any European authority, including the Information Commissioner's Office in the UK.

Under the provisions of Article 13 of EU Directive 2002/58/EC - "The use of automated calling systems without human intervention for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent".

This does not apply to those, such as HM Customs and Revenue, the National Blood Service and MORI, who make Silent Calls but do so where the call was not made with a "direct marketing purpose".

Both the UK and Irish parliaments have enacted statutory provisions to give effect to this EU Directive. The form of the respective regulations and the English used is slightly different. As my formal complaint is under the Irish version, it is the terms used there that I quote below.

In both cases it is important to note that the "consent" required here is explicit, not simply a failure to express a preference not to receive unsolicited (voice) marketing calls.

The regulation being breached by Silent Callers from Ireland

The relevant item is Regulation 13 of S.I. No. 535 of 2003 - European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003.

This states that calls "for the purpose of direct marketing" made by means of an "automated calling machine" "without human intervention" require explicit consent "to the receipt of such a communication" from the recipient (if an individual, rather than a business).

When such a call is answered, but results in silence, its direct marketing purpose is neither fulfilled nor demonstrated. For a complaint to be registered it is necessary to not only establish the identity of the caller but also to confirm that the purpose of the call was for direct marketing.

In this case, I was able to do both, by speaking with a company which I had reason to suspect of being the caller. A proper investigation of this company will doubtless reveal evidence of very many other cases, and of a continuing pattern of behaviour in breach of the regulations.

Because the nuisance of Silent Calls results primarily from the anonymity of the caller, there will be very few cases where a recipient takes the necessary time and trouble to assemble the evidence necessary for a valid complaint. It is pointless for those charged with enforcing regulations to act according to the number of complaints made about a particular company, in circumstances such as these.

Someone making direct marketing calls using an "automated calling machine" "without human intervention" would have to show that they had been provided with explicit consent for Silent Calls to be made by every individual recipient if they wished to show compliance with the regulation.

I cannot imagine that anyone would seek, or be provided with, such consent.

Summary

Under this regulation, automated calling machines may only be used for direct marketing purposes where there will be human intervention.

In the UK it has been agreed that users of predictive diallers have a way of avoiding the wholly unacceptable degree of nuisance caused by silence and a breach of the relevant regulations. If it is found that no agent is available to handle an answered call, an "Informative Message" announcing the name of the caller and the purpose of the call may be played. As this message must not perform "direct marketing" the delivered purpose of the call is thereby changed.

This message provides a way of avoiding a breach of the regulations and also ensures that every user of predictive diallers carries their proper responsibility for the inconvenience caused to those who answer the phone to find that the caller is unable to speak.

Further action

I am ready to provide help and support to anyone who wishes to take forward the Stop Silent Calls Campaign in Ireland. I am grateful to the Data Protection Commissioner for inviting me to submit a formal complaint, however I would only expect it to act in the interests of the citizens of Ireland.

I have encouraged co-operation with the relevant authorities in the UK in dealing with this case, and also with the many other possible cases where Silent Calls are made between the two countries.

If we continue to find that Ofcom is not prepared to perform its statutory duty by causing those found to making Silent Calls to cease the practice, I will present a series of formal complaints to the Information Commissioner's Office in the UK.

I hope to be able to report further progress in due course.

My contact details

You can contact me for advice, information or anything else at:

Silent {dot} Calls @ ntlworld {dot} com