On February 9, 2021, the Senate passed the bill amending the Telecommunications Act ("Tw"). The main change: the transition from the opt-out system applicable in telemarketing to an opt-in system (Article 11.7 Tw). So the telemarketing system is going to be overhauled. What is the reason for this change and what does it mean for practice?
The Tw includes rules on contacting natural persons (consumers) by telephone to convey communications for commercial, idealistic or charitable purposes, also known as telemarketing . Currently, telemarketers can call consumers unsolicited for these purposes except when the consumer's phone number is registered in the Do Not Call Register (BMNR) or the right to object has been exercised. This system, also known as the "opt-out system," causes irritation among consumers. (1) Consequently, the increasing number of complaints to the Authority Consumer and Market's complaint desk, ConsuWijzer, and the number of registrations with the BMNR prompted the legislative amendment.
The legislature distinguishes two forms of telemarketing. Telemarketing without human intervention and telemarketing with human intervention. Specifically for the latter situation, the Tw was amended.
The first paragraph of the current Article 11.7 Tw contains the rules for telemarketing that does not involve human intervention. These so-called automatic systems for conveying commercial, idealistic or charitable communications may only be used if prior permission has been granted by the consumer (opt-in). In the amended version of the Tw, this rule remains unchanged.
However, the bulk of telemarketing communications occur with human intervention. For example, the consumer is approached by a natural person by telephone. It follows from the current article 11.7 Tw (paragraphs 5 through 11) that an opt-out system applies to this type of telemarketing. In other words, the consumer's prior consent is not required in order to be contacted by telephone without being asked.
The amendment of the Tw will change this: as a main rule, telemarketing with human intervention will also be subject to the opt-in system. The current opt-out system will thus cease to exist, with the result that the freedom of telemarketers will be restricted.
On this point, it is in line with the ePrivacy Regulation proposal, in which the opt-in system is the main rule for all direct marketing channels. (2) As a result, telephone numbers no longer need to be registered in the BMNR to be spared from unsolicited communications and (also) the right to object no longer needs to be exercised.
Article 11.1 part g Tw shows that consent obtained according to the opt-in system must meet the strict requirements set by the General Data Protection Regulation (AVG). This means that consent must be free, specific, informed and unambiguous (Article 4.11 AVG). Thus, mere inaction is not sufficient: an active action by the consumer is required for consent to be given. It is up to the telemarketer to prove that such consent was given. For example, via a (digital) written or a (recorded) oral statement. At the time consent is obtained, it must be made clear what the identity of the organization on whose behalf the consumer is approached is and that the consumer can withdraw his or her consent at any time.
Thus, the introduction of the new legislation will in principle make it impossible for organizations to contact consumers unsolicited in the context of telemarketing(cold calling). However, two exceptions to this main rule are possible.
The third and fourth paragraphs of the new Article 11.7 Tw include two exceptions that still allow telemarketers to approach consumers for commercial, idealistic or charitable purposes without obtaining an opt-in. These exceptions are also included in the current Tw in paragraphs two, three and eleven.
The first exception in the new paragraph three concerns telemarketing directed at a legal or natural person acting in the course of its profession or business. These parties may be approached through telemarketing without having given an opt-in, if they have contact details specifically intended for this purpose and have also disclosed them as such. For example, because the website of these parties clearly states that for telemarketing purposes contact may be made via the telephone number mentioned there. Consent is assumed in this case.
Also, the telemarketer does not need to have an opt-in if these parties are located outside the European Economic Area and the regulations that that country imposes on telemarketing are met. Only if an opt-in requirement applies in that country, prior consent must be obtained.
The second exception in the new paragraph four of the Tw applies to offering one's own similar products and services to existing customers. A customer relationship exists if the organization has obtained the customer data when selling a product or service. Customer data obtained as part of services offered free of charge or an offer are not included. This definition is in line with the definition that already applies under the current Tw and is only extended slightly further for charities. Thus, in addition to their donors, they may also approach volunteers and sympathizers without obtaining an opt-in. However, it is required that the right to object is pointed out during every conversation. However, this obligation also already follows from the current twelfth paragraph of the Tw.
With the proposed amendments to the Tw, the Besluit bel-me-niet-register will cease to exist. As a result, the BMNR will cease to exist. Stichting Infofilter, the current administrator of the BMNR, no longer has a legal basis to process the personal data stored in the BMNR. After the new Tw comes into force, it will therefore have to delete all personal data without delay.
The new law changes the current opt-out system for telemarketing to an opt-in system. This has major implications. Where consumers could be contacted unsolicited by telemarketing in the past - insofar as the right to object and/or registration in the Do Not Call Register had not been exercised - their prior consent is now required. This consent must meet the strict requirements of the AVG and its existence must be demonstrated by the telemarketer.
Cold calling in the Netherlands appears to have become a thing of the past as a result. For organizations that depend largely (or even completely) on unsolicited telemarketing, this therefore means that the method of operation will have to be drastically adjusted in order to remain in line with the Tw rules. Time, energy and resources will have to be devoted to obtaining permission from the consumers to be approached. The advantage is that if consent is obtained, the consumer will probably appreciate receiving these telemarketing messages more. It is suspected that the offer made during such a telemarketing call is therefore more appropriate and the consumer is more likely to accept it. Another advantage is that it is no longer necessary to consult the BMNR before a consumer is called. The operating costs of the BMNR, absorbed entirely by the business community, amounted to EUR 387,334 in 2017 and EUR 446,359 in 2018. These charges, borne by the organizations using unsolicited telemarketing, will disappear completely as a result.
The exact effective date of the amended Tw is not yet known at the time of writing.
Footnotes:
(1) Parliamentary Papers II 2019/20, 35421, no. 3, p. 2.
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