The increasing level of consumer frustration and, in some instances, anxiety being caused by nuisance phone calls and messages is a serious concern to both the Information Commissioner’s Office (ICO) and the Office of Communications (Ofcom). Both organisations are committed to making full use of their existing powers to tackle the issue and reduce consumer harm.
In January 2013, Ofcom published a five-point action plan setting out how it was working with regulators, industry and Government to tackle nuisance calls. (-1-) This document replaces that plan. (-2-) It sets out the key work that the ICO and Ofcom have both been carrying out as well as the priority areas over the coming months. These priority areas are:
The plan represents a formal commitment by both organisations to work in partnership on a series of initiatives. The breadth of work reflects the fact that this is a challenging and complex issue to address. Enforcement action is critical, however used alone it can only tackle part of the problem. A broad collaborative approach is required from regulators and industry to reduce consumer detriment from nuisance calls. In addition, further action from Government is needed to help resolve the issue. We welcome the Government’s recent announcement in its Connectivity, Content and Consumer paper, that it is now considering a number of issues and intends to detail further measures on nuisance calls in the autumn. (-3-)
The ICO and Ofcom will publish a general update on progress in relation to the work set out in this joint action plan in early 2014. In addition, updates on progress in relation to specific pieces of work will also be provided on our websites.
Ofcom’s recent market research found that 82% of consumers with a landline who participated in the survey received unwanted calls. (-4-) Among those consumers, the average number of calls received was 8.4 over a four-week period (around two calls per week). However a quarter received more than ten calls over the same four-week period. This research also found that a wide range of sectors generate unwanted calls. (-5-) Payment Protection Insurance (PPI) claims accounted for the largest proportion of unwanted calls (22%) where the product or service could be identified. However other notable sectors generating large volumes of unwanted calls included energy, insurance, pensions and home improvements. In most cases, it was difficult for consumers to identify the organisation calling them. (-6-) Furthermore, the research suggests that there are a large number of different organisations generating such calls. (-7-)
There are a number of key factors driving recent increases in nuisance calls and messages. Technological developments have reduced the cost of making nuisance calls and sending spam texts and made it easier for organisations to hide their identity. Financial incentives such as referral fees for claims cases, (-8-) and compensation for mis-selling of PPI have also driven the volumes of nuisance calls and messages upwards. This issue is a global one; there is a relative ease of access to personal data that lead generators and list brokers can readily collect and sell in the UK and overseas. This practice of selling data generates significant revenue and can raise complex challenges for national regulators.
a) Targeted enforcement action
The ICO and Ofcom are both taking strong, targeted enforcement action to reduce nuisance calls and messages. Such action has a direct impact on the organisations involved as well as a wider deterrent effect on other organisations making such calls and sending text messages. This work is of critical importance and both organisations have expanded the resources available to tackle the problem of nuisance calls and messages.
Our shared commitment to taking action was underlined by a joint letter to around 170 organisations across the call centre industry, sent on 20 March 2013. (-9-) The purpose of the letter was to emphasise the importance of complying with the legal and regulatory measures in place to protect consumers from harm and to remind industry of the sanctions that may apply should they fail to do so.
The ICO is responsible for enforcing the Privacy and Electronic Communications (EC Directive) Regulations 2003 (‘PECR’). These regulations prohibit organisations from making unsolicited sales and marketing calls to individuals and businesses who have registered their number with the TPS. PECR also prohibits organisations from making automated (recorded) marketing calls or sending unsolicited marketing emails or SMS text messages to individuals who have not consented to receiving such messages.
Since May 2011, the ICO has been able to serve formal information requests (-10-) on communications providers and to impose fines (civil monetary penalties) of up to 500,000 for the most serious breaches of PECR. It published new statutory guidance on 30 January 2012.
The ICO has recently issued the following fines for breaches of PECR:
In addition, the ICO has held meetings with a number of organisations to directly address compliance concerns. The ICO reports on this informal enforcement activity on its website. (-11-) Informal enforcement has been successful in reducing complaints about targeted companies. For example, the ICO has successfully reduced complaints about the following organisations between Quarter 1 and Quarter 4 2012/13 - Weatherseal Home Improvements Ltd (complaints are down 42%), The Claims Guys Ltd (down 77%), We Fight Any Claim Ltd (down 52%), British Gas (down 59%), Scottish Power (down 30%), Anglian Windows (down 17%) and TalkTalk (down 75%).
The ICO has a simple, on-line reporting tool that allows those affected by nuisance calls to report their concerns. These complaints inform the ICO’s ongoing enforcement work. The ICO has received over 220,000 reports of concern from consumers and uses this data for analysis, together with complaints received from the TPS. The ICO also collects intelligence from other regulators, such as the Ministry of Justice Claims Management Regulation Unit and the Office of Fair Trading as well as, more recently, from mobile network operators (MNOs). It uses this information to produce a ‘monthly threat assessment’ to help identify organisations that appear to be regularly breaching PECR, and ensure that appropriate enforcement action is taken. The ICO will also be running workshops for DMA members on how PECR applies to them.
Ofcom is responsible for taking enforcement action against organisations that make abandoned (-12-) and silent (-13-) calls, using its powers under sections 128 to 131 of the Communications Act 2003 in relation to ‘persistent misuse of networks or services’. Such calls are not usually made deliberately but can be caused by the use of technology by organisations to maximise the amount of time their calling agents spend speaking to consumers. The majority of abandoned calls are caused by automated calling systems known as diallers. Ofcom has issued Guidelines (-14-) that set out the steps it expects dialler users to take so as to avoid making abandoned or silent calls and, if such calls cannot be entirely avoided, to limit the consumer harm caused as a result.
In September 2010 the maximum financial penalty for persistent misuse of networks and services was increased from its previous level of £50,000 to £2 million. Since then Ofcom has issued the following fines:
Ofcom has also taken informal enforcement action against a range of organisations. In the first six months of 2013, Ofcom has taken such action against 11 organisations following consumer complaints about abandoned and silent calls. (-18-) As a result, complaints about the numbers used by seven of those organisations have stopped, and complaints in relation to the remaining four have fallen significantly.
In light of its recent market research, Ofcom is currently investigating suspected abandoned and silent calls made by companies in the PPI/claims management sector. Ofcom’s market research also found that for 75% of silent calls and 61% of abandoned calls, the telephone number of the caller was not provided. This meant that, in the majority of cases, it was not possible for consumers to easily identify who had made the call and opt-out of receiving future calls. Ofcom is therefore also considering enforcement action against organisations that fail to provide consumers with the information they need to contact the caller after receiving an abandoned or silent call.
b) Tracing nuisance calls and messages
A second critical area of work is focussed on tracing nuisance calls and messages. It is vital for Ofcom and the ICO to be able to identify the organisations behind nuisance calls and messages in order for appropriate enforcement action to be taken.
Tracing spam texts
The ICO has been working closely with the GSMA, the trade association for the UK and international MNOs, to improve the tracing of unsolicited marketing texts. This has led to the introduction of an agreement that formalises information sharing between the MNOs and the ICO.
Individuals who receive a marketing text message can report that message to their network operator. Doing so may help to prevent further text messages from that number. They can do so by forwarding the text received to “7726” for EE, Orange, O2, T-mobile or 3, or to “87726” for Vodafone users. A new electronic reporting system for 7726 spam reports has been developed by Cloudmark for the MNOs. This system went live across the MNOs at the end of June. This is a good example of how the industry and the ICO as regulator, when working together, can identify effective solutions in a short period of time.
The ICO has already received intelligence from some of the MNOs. This data is being analysed and is likely to lead to the issue of a fine. This collaboration has also proved valuable in identifying a new area of concern about live and automated calls being made to mobile phones.
Tracing nuisance calls
There are more significant challenges in tracing nuisance calls compared to nuisance texts, as landline networks function in a much more complex way. Similarly, the tools available to capture caller information across landline networks are much more limited compared with those available across the SMS system.
The current system of call tracing relies on co-operation between communications providers as nuisance calls are typically transited across several networks before reaching the call recipient.
Both Ofcom and the ICO rely on powers to require communications providers to supply the information necessary to trace nuisance calls. Ofcom and the telecoms industry are working together to identify ways to trace companies behind nuisance calls where they try to hide their identity and to look at ways to prevent such calls. This work is taking place at three different levels:
In addition, BT has agreed to display full telephone numbers of inbound calls from abroad as routine (currently BT customers with phones with caller display will only see “INTL”). This requires technical changes in BT’s network that will take some time to implement but customers should start to see these changes towards the end of this year. All customers should have this facility by autumn 2014.
c) Effective coordinated action
The widespread nature of the problem and the range of responsibilities across several agencies necessitates effective coordinated action by regulators, which often benefits from input from industry and consumer groups.
Lead generation: ICO strategic threat assessment and delivery plan
A key piece of coordinated action is the ICO’s preparation of a strategic threat assessment focussing on the relationship between lead generation and unwanted marketing communications (Operation Linden). This is a broad-based piece of work to help key stakeholders (including regulators, consumer groups, trade associations and industry) understand the ways in which lead generation activities can generate nuisance calls and messages. To progress this work the ICO is developing a delivery plan to help ensure that this stakeholder group captures and shares intelligence effectively, and feeds this into coordinated activity, (and in particular enforcement activity), to reduce nuisance calls and messages. Progress will be reviewed at bi-monthly stakeholder meetings.
Joint ICO and Ofcom review of Telephone Preference Service (TPS)
The TPS is a free service for consumers. (-20-) It enables them to opt out of receiving unsolicited live (-21-) sales or marketing calls. It is a legal requirement that all organisations do not make such calls to numbers registered on the TPS, unless they have the individual’s prior consent. As set out under PECR, Ofcom has a duty to keep and maintain an up-to-date register of the telephone numbers of individuals who do not wish to receive such calls. TPS Limited provides this service under contract to Ofcom. The ICO has lead responsibility under PECR for taking enforcement action against organisations that make unsolicited sales or marketing calls to individuals registered to the TPS, without their prior consent.
Registration with the TPS is a key tool for consumers to limit nuisance calls. In light of this, the ICO and Ofcom will undertake an assessment of the impact of the TPS on the level of unsolicited live sales and marketing calls, to evaluate how well the TPS is currently working for consumers and inform future work in this area. This will focus on a new, in-depth piece of market research that is currently being commissioned and is likely to be completed in spring 2014.
Other coordinated action
In addition to these two pieces of work, other coordinated action includes the following:
Furthermore, Ofcom has asked Government to amend the information disclosure provisions of the Communications Act 2003 to make it easier for Ofcom to share information relating to nuisance calls with the ICO. We welcome the Government’s recent announcement in its Connectivity, Content and Consumer paper that it will do this.
d) ICO guidance on consent
Consumers may inadvertently opt in to receiving marketing communications, either due to unclear wording in the relevant form, or because of a lack of understanding about whether and if so what they are opting in to. Furthermore, there is no expiry date for “opting-in.” Such issues raise enforcement challenges for the ICO and can lead to consumer harm.
In light of these and other issues, the ICO is currently reviewing all of its guidance on direct marketing under PECR and the Data Protection Act 1998, and aims to publish fully revised and updated guidance in early September 2013. This will include comprehensive new guidance on consent for marketing, with detailed advice on appropriate methods of consent, the limitations of indirect third-party consent, time limits, and the need for records of consent. This new guidance should help to clarify what practices are acceptable and where the ICO will look to take enforcement action to reduce consumer harm. The new guidance will also cover lead generation and the sale and use of marketing lists. Its aim is to help responsible organisations to keep within the law, while emphasising what enforcement action the ICO can take against those who ignore the rules.
e) Updated consumer guides on nuisance calls and messages
In October 2012 Ofcom published new guides for consumers on preventing and complaining about nuisance calls and messages. (-24-) The guides were produced with the ICO and other regulators as well as consumer groups and set out clearly which organisation the consumer should complain to and also provide advice on steps consumers can take to help reduce nuisance calls. As of end June 2013, the guides have been viewed on the Ofcom website over 159,000 times.
The complex nature of the regulatory framework and the wide range of different types of calls and messages make such guidance of particular importance for consumers. In light of this, we will review the guides in discussion with consumer groups and, where appropriate, update it by end 2013 to ensure that they remain as useful as possible for consumers.
f) New proposals for tackling nuisance calls
Ofcom is currently developing proposals to look at possible new ways of tackling the root causes of nuisance calls, which it intends to share with Government. Given the complexities and challenges involved, we envisage that a holistic package of measures is likely to be most effective in reducing nuisance call volumes and the associated consumer harms. Ofcom will consider a range of possible technical and non-technical measures, as well as possible combinations of these, and assess how effective they might be in tackling nuisance calls. Ofcom plans to provide an update to Government on this work in autumn 2013.
Tackling nuisance calls and messages is a priority issue for both the ICO and Ofcom. This joint action plan demonstrates our commitment to addressing the issue to reduce consumer harm. The six priority areas are wide-ranging in scope and approach reflecting the breadth and complexities of the issue. Enforcement work remains central, but is not sufficient on its own to address the underlying causes; it needs to be complemented by a range of other work.
The six priority areas are:
In addition, we will be working closely with Government as it takes forward the nuisance calls work set out in its Connectivity, Content and Consumers paper.
2.- Four of the work streams in Ofcom’s five-point action plan are carried forward into this joint action plan: enforcement, improving compliance, tracing nuisance calls and effective coordinated action. The fifth workstream – new research was completed earlier in the year.
5.- This finding is supported by reports to the ICO, which suggest that nuisance calls and SPAM texts relate to a wide range of products and services including investment opportunities, mobile phone contracts, home security, gym membership, laser eye surgery, competitions, takeaway food, adult entertainment.
12.- This is a call where a connection is established but which is terminated by the person making the call when the consumer answering picks up the receiver. Ofcom expects that, in such circumstances, the consumer should hear a brief recorded information message from the organisation that is trying to call them providing the identity of the organisation and a means of contacting them to opt out of receiving further marketing calls from that organisation.
13.- A silent call is a type of abandoned call, where a consumer receives a call but can hear nothing on answering the phone and has no means of establishing whether anyone is at the other end of the line.
16.- Ofcom’s Guidelines require organisations from playing recorded messages that include marketing content in the event of an abandoned call. The press release for the npower case can be found at http://consumers.ofcom.org.uk/2012/12/npower-fined-for-making-abandoned-calls/
18.- Section 393 of the Communications Act 2003 restricts the disclosure by Ofcom of any information about individual businesses obtained in the carrying out of Ofcom’s functions under the Act. As a result of these restrictions, our usual practice is not to disclose the names of organisations that are subject to informal enforcement action. However, in cases where we decide to initiate formal enforcement action, we usually publish a summary of the investigation including the name of the business under investigation on our website.
23.- This is a sub-group of the “London Action Plan” that was set up to promote international spam enforcement cooperation and address spam related problems, such as online fraud. Many of the members also have an interest in nuisance calls and messages because of the potential read across from SPAM to telephony.