March 1, 2016

The ICO says that it supports action that would reduce consumer complaints about unwanted marketing calls, and the perceived nuisance that these cause to the public.  The ICO is committed to taking action against organisations that breach the Privacy and Electronic Communications Regulations 2003 when regulatory powers allow.

Further, the ICO views Ofcom’s persistent misuse powers as complementary to its own.  The current threshold at which the ICO can take enforcement action against those who fail to comply with the 2003 Regulations is set at “substantial damage and distress”.  Whilst there is a current consultation proposing that this threshold is removed or lowered, in the meantime the ICO says that it views the lower threshold of “annoyance, inconvenience or anxiety”, that can be applied by Ofcom under the Communications Act 2003, as helpful in allowing some regulatory action when the ICO is unable to act.  It also has a memorandum of understanding with Ofcom, which facilitates joint working.

On nuisance calls in general, the ICO says that there is significant and compelling evidence of growing volumes of unsolicited live and automated telephone calls and SMS texts to UK consumers, and evidence that consumers are increasingly concerned about the problem and complaint volumes are increasing.  Accordingly, it says, it has put forward to the Department for Culture, Media and Sport a case for lowering of the threshold for enforcement action relating to unsolicited electronic marketing.  The current threshold has, the ICO says, “proven difficult to establish and uphold in enforcement action”.  Accordingly, it is seeking a lower threshold to enable it to tackle the problem more effectively.

In terms of silent or abandoned calls, one of Ofcom’s suggested approaches is to set abandoned call allowances based on percentages of total calls made, the idea being that abandoned calls could not exceed X percentage of the total calls made within a particular period.

The ICO says that this approach could cause organisations to need to make more calls in order to level 
out the number of abandoned calls made over a particular period.  This could create a cyclical effect with consumers receiving more calls that they perceive to be a nuisance as a result of this type of blanket measure.

On persistent misuse policy, the ICO says that it agrees with Ofcom’s approach that use of misleading or inauthentic calling line identification (CLI) information should be treated as misuse of the telecommunications network.  However, it says, without enforcement activity (and it recognises the challenges of identifying those responsible), the inclusion of obligations in respect of genuine CLI information may fail to have any impact on those organisations who are prepared to ignore their obligations.

In terms of the proposed use of localised or geographical CLIs, the ICO says that it may have fairness implications from the perspective of the Data Protection Act 1998.  Whilst leaving a genuine, localised CLI that a consumer can use to return an organisation’s call could be beneficial from a cost perspective, the ICO says, there is a need to consider whether the leaving of such a number (in the absence of any message) could mislead individuals into thinking that the call was from local friends or family or otherwise be deceptive.  To read the ICO’s response in full, click here.