March 1, 2016

The consultation asked whether stakeholders agreed that the Government should amend the Privacy and Electronic Communications Regulations 2003 to make it a requirement for direct marketing callers to provide CLI, to which the ICO replied, “Yes”, adding that it “strongly supports the idea of requiring callers to provide CLI when making direct marketing calls”.

Requiring CLI would, the ICO says, send out a message to callers and call recipients alike that direct marketing should and can be carried out in a legitimate, transparent and accountable manner.  It should empower individuals to choose whether to answer a call at all and having the caller’s CLI should also enable them to make a better informed complaint if necessary.

From an enforcement perspective, requiring a valid CLI should ensure that more detailed, and consequently more useful, evidence and intelligence can be obtained relating to individual breaches of the 2003 Regulations.  It should also assist the ICO in identifying those organisations it most needs to target with enforcement activity.

However, the ICO says, there is a strong need to ensure that the information obtained is as useful as possible.  It identifies a number of potential issues that need to be addressed to ensure that any amendment is fit for purpose.  Specifically, the ICO would want any amendment to include a requirement for a “valid CLI” to be provided.  It would also want clarity as to what constitutes a “valid CLI”, addressing the following issues:

• the CLI needs to be “dialable”, i.e. capable of receiving inbound calls;
• the CLI needs to be a direct contact number for the organisation that is the subject of the direct marketing or for that organisation’s delegated or contracted representatives (the instigator of calls or caller);
• when a consumer contacts the CLI number, it should be answered in some way to avoid already frustrated or upset individuals attempting to contact dialable numbers that are never picked up;
• whether the CLI needs to be a UK number, or whether a non-UK number that is otherwise genuine can be deemed valid;
• whether a presentation number can be a valid CLI. Any wording needs to take into account that there can be legitimate circumstances when the calling number would not necessarily be the number that the organisation would display as the CLI;
• the level at which any charge can be levied for dialling the CLI; and
• whether geographically targeted CLI can be used.

Any wording used for a “valid CLI” also needs to be compatible with VOIP (Voice over Internet Protocol), which is increasingly being adopted, the ICO says.  Any amendment to the 2003 Regulations needs to enable enforcement activity and contact from individuals where VOIP calls have been made.

Any amendment must also be consistent with the guidance that Ofcom has issued in relation to CLI, to ensure that both the ICO and Ofcom can enforce their separate powers consistently and tackle the problem of nuisance calls in a cohesive and constructive way.

Overall, the ICO says that it strongly welcomes the proposal.  It would allow the ICO to streamline its investigation, evidence and intelligence gathering processes and consequently have a cost saving impact.  Any potential costs with the proposal would be significantly outweighed by potential benefits, the ICO concludes.  To read the ICO’s response in full, click here.