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UTILITY WEEK | 23RD - 29TH OCTOBER 2015 | 13 Policy & Regulation Market view M arketing strategies and the law are not always easy to reconcile. How- ever, recent fines relating to market- ing telephone communications are a timely wake-up call to organisations that they need to get up to speed. Ignorance is no defence, so your marketing plans must comply with your legal obligations or your organisation may be the recipient of PR coverage of the unwanted kind. It is clear that many organisations view marketing calls as a useful business develop- ment tool. However, it is also clear that many organisations' understanding of the law in this area is vague. Unwanted marketing calls are one of the banes of modern life. A survey by Which? found that up to 85 per cent of households receive at least one "nuisance call" on their landline every month. Regardless of the annoyance they cause, this marketing strat- egy is used by many organisations, so it is not surpassing that there has been a crack- down on these types of calls. A recent record fine for a business highlights the dangers of being unaware of the laws that govern cold and automated calling. Recently, the Information Commissioner's Office (ICO) issued Home Energy & Lifestyle Management Limited (HML) with a record fine of £200,000 for recklessly making auto- mated marketing calls without the recipi- ents' prior permission, in contravention of marketing call laws. It was reported that the company had called more than six million people with an automated system, offering "free" solar panels. The ICO received 242 complaints about these calls within three months in 2014. During the ICO investigation, the Glas- gow-based company (which was part of the Government Green Deal initiative) admitted it was unaware of the relevant laws relat- ing to making automated calls, a fact that Steve Eckersley, the head of enforcement at the ICO, said was "'beyond belief ", while he further stated that HML "didn't even bother to find out what the rules were and its badly thought out marketing campaign made peo- ple's lives a misery". The level of the fine, and the ICO's con- demnation of HML's actions, illustrate how seriously the commissioner is dealing with organisations that are either ignorant to the law or operating without regard to it. The penalty is also an early example of the larger fines being imposed by the ICO under its increased powers. In April 2015 the law was changed making it much easier for the ICO to impose fines, of up to £500,000, on organisations that make calls outside the legal parameters. The previ- ous requirement that it must be proved that a call caused "substantial damage or distress" was removed. The ICO made it clear that this fine "should be a warning to other companies to think before they launch into a campaign. Direct marketing campaigns can be run within the law with a little thought". Therefore, for businesses making cold calls as part of its marketing strategy, it is important to be aware of the laws. The law governing marketing calls is mainly found in The Privacy and Electronic Communication (EC Directive) Regula- tions 2003 (PECR). However, they also sit alongside the Data Protection Act 1998. It should be noted that the PECR differentiates between live and automated calls. Unsolicited live marketing calls are not permitted if the recipient has informed an organisation that it does not want such calls, or the telephone number is registered on the Telephone Preference Service (TPS), an opt-out list for marketing calls, or the Corpo- rate TPS (CTPS). This is the case even if that recipient is an existing customer. An organisation may make live calls without specific consent (although specific consent is recommended) provided that the number is not listed in the TPS or CTPS, and the recipient has not objected to your calls previously. Therefore, organisations should check marketing lists against the TPS and CTPS, while constantly maintaining an "objection/opt out list". The law governing automated calls is stricter still. The PECR provides that such recorded messages should not be made unless an organisation has obtained specific consent from the recipient. Please note that general marketing consent (even if it cov- ers live marketing calls) will not satisfy this requirement. Again, such calls (if expressly consented to) must identify the caller and a contact address or freephone number. A business operating without any knowl- edge of these fairly simple rules is worrying for business and customers alike – and the possible hey fine from the ICO underlines that fact. It is essential for any business making calls to any customers or potential customers to be fully aware of the laws gov- erning these calls. If in doubt, always check before picking up that receiver (or pressing that button), otherwise you could be risking a substantial fine. Ensure your marketing strategy complies with the law or it could be a PR and financial disaster. Sean Crotty is a partner at Weightmans LLP specialising in data protection and media Don't be a nuisance The Information Commissioner recently assumed new powers to fine companies for breaking telemarketing rules, and he has already shown he's not afraid to use them, says Sean Crotty. Key points Many companies are not up to speed with the law on telemarketing. The Information Commissioner's Office is cracking down on law-breakers. In April the law was changed making it easier for the Information Commissioner's Office to impose fines. Different rules apply to automated and live cold calling. Live marketing calls should be checked against Telephone Preference Service lists and your company's own opt-out list. Recipients of automated calls must have registered a specific consent to receive such calls – a generally consent to receive marketing calls does not suffice.