Unsolicited Marketing Communications (Company Directors)

Patricia Gibson Excerpts

Tuesday 13th September 2016 Commons Chamber

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

I beg to move,

That leave be given to bring in a bill to enable the Information Commissioner’s Office to take action against company directors for breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 relating to unsolicited marketing communications made by a company; and for connected purposes.

Since I was elected last year, I have been campaigning to tackle the scourge of nuisance calls, which blight the lives of far too many of our constituents across the United Kingdom. I can vouch for the fact that this is a huge problem faced by far too many of my constituents, and I know that there is a similar picture across Scotland and across the United Kingdom. It is time that named company directors of the companies that are responsible for nuisance calls are held to account instead of fines for breaches in the law being imposed on companies that then close down and are reopened under a different name, thus allowing fines for breaches of the law to go unpaid.

Being bombarded with nuisance calls and texts is not only an annoying interruption to people’s lives—it can be deeply distressing to the hundreds of thousands who endure them on a daily basis. They are a blight on the lives of too many members of our communities, and particularly upsetting for those who are vulnerable. Research from Which? last year found that 74%, or three quarters, of people with a landline and 58%—six out of 10—people with a mobile phone have reported a nuisance call. Six out of 10 people have indicated that cold calls have actively discouraged them from picking up their landline when it rings. While most of us—80%—say that we find cold calls annoying, one third of people receiving such calls admit to feeling intimidated by them, and about one third of people screen their calls to minimise unsolicited calls on their landlines. Beyond this, other things are worth remembering. Thirty-two per cent. of people who receive a nuisance call receive more than 10 calls over four weeks, and 12% of people receive more than 20 calls over four weeks. Thirty-five per cent. of these calls are marketing calls.

We are all forced to tolerate the appalling nuisance of aggressive and persistent marketing calls. However, Ofcom has found, disturbingly, that people aged over 55 and those who are unemployed tend to receive a higher number than any other group of people. There has been a clear trend showing a marked increase in the number of calls received by the over-55s. Many of us can choose to simply ignore calls if we suspect that a nuisance call is being made to us, but let us consider what happens if someone is elderly, frail, and dependent on their landline. They may either answer their phone when it rings so as not to miss calls from relatives checking that all is well, or ignore their phone when it rings to avoid nuisance calls. If they do not answer their phone immediately, their relatives may think that something has happened to them—perhaps that they have had a fall. They need to answer their phone, but the cost of doing so is having to tolerate numerous nuisance calls each day. People are being harassed and subject to real annoyance, which creates anxiety and distress every day, several times a day. It is simply not good enough.

There are those who advise that if we are plagued by nuisance calls we should install a call blocker. However, these do not come as standard on all phones. In any case, buying a call blocker means that one has to go to the expense of doing so, with the cheapest being about £40. Why should consumers be driven to this expense? Why is the onus and responsibility on the consumer and not on the company causing distress?

The UK Government have taken measures to tackle this scourge by insisting on caller ID. That is a step forward, but it deals with the symptoms and not the root cause. In April last year, the Information Commissioner’s Office had removed from it the need to prove that a company making unsolicited marketing calls had caused distress. Again, that is a step forward, but more needs to be done. Last year, the Department for Culture, Media and Sport made supportive noises about the change to the law that I am proposing. I hope that those positive noises prove to be true. The Scottish Government are using what limited powers they have under consumer protection provisions, but much more needs to be done.

Companies that unlawfully make unsolicited marketing communications by phone or text can be fined by the regulator—the Information Commissioner’s Office—if it is found that they have not complied with the rules on the use of consumers’ personal data. However, enforcement action is taken against the company rather than named company directors, which means that too many companies do not treat compliance with the law on marketing communications as a board-level issue. Too many rogue directors avoid paying fines by closing one company, starting up another with a new name—a practice known as phoenixing—and continuing their activity. That is why only four out of 22 such fines imposed have been paid in full, according to Which? This Bill would make senior company executives accountable if their company failed to comply with the rules on unsolicited communications, and hold directors to account where the company did not pay the fine, even if the company phoenixes.

Under the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Information Commissioner’s Office can currently take action only against a company rather than a named individual where marketing communications are made on behalf of a corporation. If we hold culpable senior executives at board level accountable for the company’s practices, those individuals would need to ensure that the company’s practices were in line with the law or face personal action, which could lead to disqualification as a company director in some cases.

The enforcement regime under the 2003 regulations is an extension of the enforcement regime under the Data Protection Act, which already includes a rule that allows individual company officers to be held accountable for certain breaches of it. However, that rule does not currently extend to breaches of the 2003 regulations.

This Bill would allow the Information Commissioner’s Office to take action against company directors for breaches not only of the Data Protection Act, but of the 2003 regulations. That means that the Information Commissioner’s Office could take action directly against directors where they allow their company to commit breaches or fail to pay fines. Where the director is convicted of a criminal offence, they could also be subject to disqualification.

That would help to tackle the root cause of this blight on our citizens’ lives in their very own homes. Technological advances mean that those who make nuisance calls can churn out automated calls at the rate of millions each day. This Bill would improve life for all of us. I believe that it would be welcomed by legitimate businesses, which face a crisis in consumer confidence, as rogue businesses undermine the entire relationship between legitimate business and consumers.

There is a huge amount of support for the alterations to the law that this Bill would make, with 79% of those surveyed agreeing that the directors of companies should be held personally accountable if their company makes these calls without the necessary permission. This Bill, importantly, would not incur any additional cost for the taxpayer, as no additional Government funding would be needed to implement or enforce it. Given the scale of the problem of nuisance calls, and given this Bill’s attempts to tackle the problem at source instead of tackling the symptoms, I commend the Bill to the House.

Question put and agreed to.

Ordered,

That Patricia Gibson, Kirsten Oswald, Dr Lisa Cameron, Roger Mullin, John Nicolson, Anne McLaughlin, Joanna Cherry, Corri Wilson, Alan Brown, Jonathan Edwards, Liz Saville Roberts and Hywel Williams present the Bill.

Patricia Gibson accordingly presented the Bill.

Bill read the First time; to be read a Second time on 18 November, and to be printed (Bill 65).