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STOPSolicitor Sally Hui takespositive steps to reducingspam, junk mail andunsolicited phone calls

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Being inundated with unwanted directmarketing mailings, spam, telesales calls andpre-recorded calls is becoming an accepted, butfrustrating, part of modern life. This articleexplains how these companies got your detailsin the first place, offers some practical

suggestions to help you to reduce the amount of directmarketing information that you receive and provides contactpoints if the companies concerned do not stop contacting you.Different rules apply depending on the medium on which thedirect marketing information is transmitted, so I will deal withthese in turn.

How do these companies get your details in the first place?They most probably got your details in one of the followingways:● from an application or order form that you filled out (e.g. for

a credit card or loyalty card, from buying goods or servicesor entering into prize draws). If you have had previousdealings with the company contacting you, you probably didnot opt out of receiving marketing information from thecompany when you completed the form or the companysimply did not ask whether you wanted to receive directmarketing information from them.

● from a list of names and contact details that they rentedfrom a list rental company. List rental companies collatepersonal details and sort them into various categories (e.g. people who they think may want to buy particular kindsof products), and then sell that information to othercompanies for marketing purposes. If you have never hadany dealings with the company contacting you it is likelythat your details were obtained from a rented list.

So how did the list rental company get your details? ● from a company you had previous dealings with; if you read

the data protection statements in application or order forms,they quite often state that your details may be passed to thirdparties if the company concerned thinks that you might beinterested in receiving information about those third parties’goods or services.

● from going through the telephone book systematically andcontacting each person who appears in it.

● by generating random numbers and calling themautomatically.

How can you prevent these companies from getting your detailsin the first place, or from using your information for marketingpurposes?I would recommend the following:● Before you give any company your personal details, read the

data protection statement carefully to see how that companywill use your details (e.g. will it use them to contact you onlyabout its goods and services, or about third party products,or will it pass your details to third parties?).Although the company will need your details for certain

things, such as to process your application or order, it shouldallow you to opt out of having your information used for

marketing or promotional purposes. If it does not, considerwhether you actually want to give that company your details.

Take care when reading the data protection statements, asthey can often be confusing (e.g. use of double negatives), andyou may have to tick the box, or de-select the pre-ticked box, toopt out. If you opt out, the companies should not contact youfor marketing purposes.● Consider registering your telephone number as an ex-

directory number. This may reduce the number of calls youreceive, but it will not completely eliminate calls as somecompanies generate and call random numbers automatically.

If they have your details already, how can you stop companiesfrom calling you?You should be able to do this in two ways.

First, you could register your details with the TelephonePreference Service (see www.tpsonline.org.uk for more details).The Telephone Preference Service lists those people who haveregistered a general objection to receiving direct marketingcalls. Companies are not legally permitted to call you formarketing purposes if you are on the list (unless you expresslytell them that you consent to receiving their calls) and they arerequired to check the Telephone Preference Service list beforemaking a call. Once your registration becomes effective, youshould not receive further calls. However, if you have hadprevious dealings with a particular company, you will probablyhave to confirm expressly that you no longer want to receiveits calls, as it may assume that you are still happy to receivethem despite your registration.

Secondly, you should inform all callers (e.g. ones who havenot checked the Telephone Preference Service list) that you donot want him to make further calls to you. Once you do so, thecaller is legally obliged to stop calling you.

What about automated calls?Automated calls are the pre-recorded messages that start toplay when you answer the telephone.

You should not be receiving any automated calls unless youhave previously told that company that you want to receivethem. Automated calling companies are obliged to provide youwith their contact details at the end of each call. You shouldinform them that you do not want to receive any more callsand once you have done so, they are legally obliged to stopmaking them.

What about electronic email?You should not receive any electronic mail (e.g. any text, voice,sound or image message, such as emails and SMS textmessages) unless you have given that company previousconsent to do so.

However, a company is permitted to email you without yourprior consent if:● it obtained your details in the course of a sale, or

negotiations for the sale, of a product or service to you;● the marketing material is in respect of that company’s

similar goods and services only; and ➔

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● you were given a simple means of refusing its use of yourdetails when your details were collected and you are giventhe opportunity to refuse each time an email is sent to you.If you no longer want to receive electronic mail from a

particular company, you should inform it and once you havedone so, it is obliged to stop.

There is not a statutory equivalent of the Telephone or FaxPreference Service for electronic mail, but there are non-statutory direct marketing initiatives with which you canregister (for more information, see the Direct MarketingAssociation’s website at www.dma.org.uk).

What about mailings sent by post?To reduce the number of mailings from companies with whichyou have had no prior contact, you should register your nameand address with the Mailing Preference Service (seewww.mpsonline.org.uk to register). The Mail PreferenceService lists those people who have registered a generalobjection to receiving direct marketing by post. Unlike the Faxand Telephone Preference Services, it is good practice forcompanies to check the Mail Preference Service beforesending out mailings but they are not legallyobliged to do so.

If you do not want to receive mailings(regardless of whether you have hadprevious contact with the companyconcerned or not), you should informthat company. Once you have done thatthe company is no longer permitted tosend you mailings.

Note that mailings addressed to ‘theOccupier’ are permitted as they do notidentify an individual so it is not subject topersonal data legislation.

What about fax?Companies must not send marketing faxesto you:● personally at home (or at work if you work

for a partnership, trade association or anyother unincorporated association) unlessyou have given them prior consent to do so;

● at work (if you work for a company) if your company haspreviously notified them that it does not want to receivethem; or

● the number is registered with the Fax Preference Service.The Fax Preference Service (see www.fpsonline.org.uk to

register) works very much in the same way as the TelephonePreference Service, and companies are legally obliged to checkthe list before sending a fax.

What happens if you have asked the companies to stop, but theycontinue to contact you?Telephone or Fax Preference Service: In respect oftelesales calls, automated calls and faxes, you shouldcontact the Telephone Preference Service or Fax PreferenceService in the first instance. It will check that your number

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has been registered accurately and advise the company ofyour complaint. Most responsible companies will stopcontacting you when the Telephone or Fax PreferenceService contacts them about a complaint. If this is noteffective, you can complain to the InformationCommissioner.

The Information Commissioner: You can make acomplaint about receiving electronic mails, faxes, telesalesor automated calls to the Information Commissioner bycompleting its complaints form, which is available fromthe ‘Privacy and Electronic Communications’ section ofthe Information Commissioner’s website atwww.informationcommissioner.gov.uk.

Complaints about mailings can also be made to theInformation Commissioner, by completing its Request forAssessment form, which is available in the ‘Request anassessment’ section of the Information Commissioner’swebsite.

The Information Commissioner may investigate your claimand it may order the company concerned to comply with thelaw by issuing an enforcement notice. It is a criminal offencefor the company not to comply with the enforcement notice,and it is punishable by a fine of up to £5000. In some

circumstances, you may be entitled to compensation if youcan show a court that the company contacting you has

breached the law and has caused youquantifiable damage.

The suggestions given above only apply tocompanies contacting you from the UK.

Unfortunately, English law does not regulatecompanies outside the UK from contacting you sothe protection available to you is relatively weak.Having said that, the UK law on this area is derivedfrom an EC Directive, so each EU member countrywill have similar corresponding laws regulating itscompanies. In addition to this, the Department forConstitutional Affairs is currently looking intogiving the Information Commissioner greaterpowers of enforcement.

In the meantime, if you are contacted by a foreigncompany and it will not stop contacting you, you can

complain to the European Enforcement Team at theOffice of Fair Trading at Fleetbank House, 2-6 SalisburySquare, London EC4Y 8IJ.

Hopefully, the suggestions set out in this article will go someway to reducing the direct marketing information you receiveand save you both time and unnecessary stress. ■

Sally Hui is a solicitor specialising in commercial technology at lawfirm Tarlo Lyons: www.tarlolyons.com

Useful websites● Telephone Preference Service www.tpsonline.org.uk ● Direct Marketing Association www.dma.org.uk● Fax Preference Service www.fpsonline.org.uk● Information Commissioner

www.informationcommissioner.gov.uk