Nuisance Calls

Baroness Laing of Elderslie Excerpts

Thursday 16th January 2014 Commons Chamber

[Mike Crockart]

I agree entirely, and I am glad my right hon. Friend used the word “careless”, because carelessness and the ease of making calls without having to think too closely about the regulations cause much of the problem.

The regulations are in place and the guidance is excellent. A document issued by the ICO tells companies what to do. It states:

“Organisations can make live unsolicited marketing calls, but must not call any number registered with the TPS unless the subscriber (ie the person who gets the telephone bill) has specifically told them that they do not object to their calls.”

“Specifically” is the word, and the guidance seems straightforward. Hon. Members might think that it makes it clear that companies should not make calls in those circumstances.

The document also provides a checklist with an example of best practice, which states:

“Make sure your privacy notice is clear, honest and will be understood by the people it is aimed at. Avoid confusing mixtures of ‘opt-ins’ and ‘opt-outs’. Do not pre-tick consent boxes.”

Not only small, fly-by-night fraudulent companies ignore that guidance. I did a small survey yesterday of some well-known companies. Unfortunately, as expected, the reality is very different. Companies ask us in a multitude of ways to give our consent to be contacted. TalkTalk has a pre-ticked box for giving first-party consent, but there is an unticked box, which is better, for giving third-party consent. Virgin Media is confusing because its question combines first and third-party consent in one box, which defaults automatically to opt-in. As hon. Members would expect, John Lewis is much better. It excellently uses plain language on all its boxes and there is a separate box for each type of contact—e-mail, mobile or landline. Unfortunately, all the boxes are defaulted to opt-in.

I went to BT’s site and looked at buying a phone. Unfortunately, BT had nothing relating to first-party consent—there was no box to opt out or to opt in. The third-party consent option was defaulted to blank, meaning it was not defaulted to opt-in. I wondered about that, so I followed an obscure-looking link to its privacy policy, which states:

“Unless you tell us not to we assume we have your permission to tell you about BT products and services we think you might be interested in, we won’t send you marketing messages if you tell us not to.”

The way that one has to tell them not to, however, is by opting out when one receives them

“so you can opt out when we call you as part of a telemarketing campaign, you can opt out when we email you as part of a email marketing campaign, or you can write to a freepost address.”

That is absolutely not in tune with the guidance issued by the ICO. With such a confusing range of options, it is no wonder that consumers do not know what to tick or what they have consented to.

I will turn now to the level of proof expected by the ICO when presenting cases relating to nuisance texts. This should not take long, as the Government recently announced their willingness to lower the threshold, although they have not specified what the new level of detriment will be or when the change will be implemented. By reducing the level of detriment from “substantial damage or substantial distress” to “annoyance, inconvenience or anxiety”, it would align the threshold with that expected of Ofcom in silent call cases.

The recent decision by an appeals court judge to overturn the fine that ICO issued to Tetrus late last year demonstrates exactly why this section is crucial. Tetrus had been engaged in sending unwanted text messages on an industrial scale, sending hundreds of thousands of texts every week from unregistered SIM cards that seek out potential claims for mis-selling of PPI or accidents. Tetrus did not make any effort to show that the recipients had given consent, or that they retained records of consent. It did not even register with ICO under the Data Protection Act 1998 as a controller of data.

For 10 years, it has been unlawful to use text messages for direct marketing unless the recipient has either asked for, or consented to, the communication. While the Criminal Justice and Immigration Act 2008 gave ICO the power to impose monetary penalties of up to £500,000, there are certain preconditions. First, the contravention must be serious and it must also be

“of a kind likely to cause substantial damage or substantial distress.”

The appeals judge unfortunately decided to overturn the £140,000 penalty, as there were problems with the words “likely” and “substantial distress”. The judge ruled that the effect of the text messages was likely to cause

“widespread irritation but not widespread distress.”

That is an extremely worrying judgment that effectively gives a green light to any spam texter to send thousands—perhaps hundreds of thousands—of unsolicited texts, as long as they are careful not to use distressing wording. That seems to be the only point in the judgment on which there is a point of debate. If nothing else I say today is accepted, movement on this issue would be welcome.

My next point is on industry action and on those industries involved in making calls. Many of the calls sent by Tetrus were attempting to generate leads for claims management companies. Those companies are now regulated by the claims management regulator. I mention that only to point out that it is a good example to follow. Claims management texts are on the wane and there is a reason for that. As a condition of the authorisation of a claims management company, they must

“comply with the Conduct of Authorised Persons Rules 2013.”

I have a copy here and I need only read 30 words from this excellent document, because they say:

“Cold calling in person is prohibited. Any other cold calling, by telephone, email, fax or text, shall be in accordance with the direct marketing associations’ direct marketing code of practice.”

Those 30 words will hopefully have effectively dealt with texts from CMCs, because if their registration depends on abiding by the rules, it is amazing how the mind can be focused. That is why, when the Select Committee on Business, Innovation and Skills was writing a report into payday lenders, I managed to sneak a recommendation into it. It said:

“We recommend that the FCA…discusses with the Information Commissioners Office…to establish the extent of bad practice”—

in the area of direct marketing.

“We…recommend that the FCA devises and issues a guidance note for payday lenders along similar lines to that established by the Claims Management Regulator in its Marketing and Advertising Guidance.”

The problem here is that we should not have to do it piecemeal—bit by bit, for each sector of industry. We should be able to set that at ICO level, where we are dealing with the method of making those calls.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. Just before the hon. Gentleman progresses, I should gently point out to him that he has spoken for over half an hour and, while the House appreciates the importance and intricacy of the points he is making, I know that he will bear it in mind that several other Members would like to speak this afternoon. While I do not urge him to conclude his remarks immediately, he might be thinking about drawing to a conclusion in due course.

[Mike Crockart]

I thank you for your guidance, Madam Deputy Speaker. I am heading towards to my last few points, I promise.

The reason for slipping in that recommendation is that when we took evidence from payday lenders I had put them on the spot and asked them whether they engaged in this sort of direct marketing. They said, “Oh no, of course not. We wouldn’t do that.” I went back through my texts, therefore, and found nine directing me to a website offering payday loans: www.text4payday.com—don’t go there! On that website, I filled in details asking for a £200 loan over a month and pressed the button, “Get your cash”—not “Apply”, but “Get your cash”—expecting to be quoted a £50 charge, as advertised on the payday lender sites. Instead, I was directed to the QuickQuid website, which was one of the companies that gave evidence, where I was offered £400 over three months at a total cost of £754.

I left it at that, because I did not think it was a particularly good deal—I did not even press any buttons on the second website—but I then received e-mails and texts as follows: Tuesday 5 November, 1.16 pm, an e-mail saying there was one more step to take; same day and time, an e-mail giving me pre-contract information; half an hour later, a text urging me to sign the contract; 15 minutes later, a call from America urging me to sign up, which I declined; 20 minutes later, another e-mail giving me pre-contract information; the next day, at 6.32 am, an e-mail saying, “Hurry, application expiring soon”; at 7.59 am, another e-mail with pre-contract information; at 12.9 pm, another e-mail with account log-in information. That was worrying enough, but I then thought, “Well, is this website just a front for QuickQuid?” so I went on again, only this time I made up details. I called myself Boris Peep and made a further application. I put in my constituency address and immediately started getting texts saying “Hi, Boris. Your application has been approved.” So a made-up person ended up being approved for a payday loan. It is very worrying and needs urgent action.

The telecoms industry also needs to take action. It is time that some of them stopped looking on themselves almost as delivery companies—“As long as you pay the postage, you can send any old rubbish you like. In fact, the more the better, as we will charge you for each packet.” The industry needs to take responsibility for the nuisance calls it is delivering daily, and some have decided to do exactly that, which is welcome. In mobile circles, if someone receives a spam text, they can forward it using the short code 7726, and the date is aggregated and forwarded to the Information Commissioner’s Office. I want that model replicated for landlines. In our evidence session, we asked Warren Buckley from BT whether we could have it, and he said:

“From our point of view first of all I would have to set up a whole new service”

and

“work out where I’m going to hold that data… I’m not suggesting we can’t do it, and I’m not suggesting that we won’t do it,”

but

“it’s extremely difficult for us to do.”

I went on to BT’s website and found a helpful BT calling features user guide, which told me about its “choose to refuse” service, which lets people choose who gets through:

“Choose to Refuse lets you put a stop to nuisance or unwanted calls by stopping them from getting through to you. You can block up to ten numbers.”

To do this, customers dial 14258**, and the number is added to a database. That does not sound too onerous or difficult.