I don’t think Regulation 21 is the
problem. I think we both agree that an unsolicited call instigated for the
purposes of marketing is a breach of the regulations.
My point is this: if a complainant cannot
describe the marketing (because they put the phone down before it happened), can
the Commissioner take action against the instigator? Is the evidence that they
have good enough? I don’t think it is. The ICO cannot take action on
every complaint it receives, and has to work on those which can actually go
somewhere. It’s also important to recognise that the Commissioner does
not have an obligation to carry out an assessment under PECR, in the way that
he does under the DPA. PECR gives him the discretion to exercise his
enforcement powers – so if a complaint doesn’t match up to his
criteria, he doesn’t have to do anything.
Tim Turner
From:
This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On
Behalf Of Tim Trent
Sent: 01 April 2010 13:26
To: [log in to unmask]
Subject: Re: [data-protection]
When is a sales cold call not a sales cold call?[Scanned]
I read section 21 of the PECR differently.
You might also consider the case of the builder who redeveloped my
kitchen. The stupid man got drunk and was carrying a knife, something he
concealed when he knocked on a friend's door, and which he later handed to them
for safekeeping, realising, he says, that it was wrong to carry it.
He is currently on probation and has to wear a curfew tracking tag for
carrying this knife at all.
He did not use the knife, but he carried it.
You and your brick, the builder and his knife, and the cold caller and
the call appear to me to be very much the same thing.
One does not take a brick for a walk. One does not take a knife for a
walk, and one does not call someone with whom one has no relationship just to
pass the time of day
On 1 Apr 2010, at 11:39, Tim Turner wrote:
I agree with the ICO.
They contact the organisation and tell them that a
complainant thinks they were about to receive a marketing phone call.
How would that stand up at the Tribunal? The Tribunal is not about right
and wrong - it's about evidence.
Any formal action the Commissioner takes could ultimately end up at the
Tribunal - some complaints do not meet the threshold required. A person
who wants to complain with any force needs to provide evidence of the
breach, not evidence that the breach was clearly about to happen.
Regulation 21 might focus on instigation, but the only worthwhile proof
of the nature of the call is to let it play out.
I walk down the street holding a brick. I stop in front of a window,
still holding the brick. Can anyone prove - to a legal standard worth
pursuing - that I was about to chuck it through the window? No. If you
wait, the window gets broken, but at least I can't pretend that I was
taking the brick for a walk.
One can wait for proof and complain about it, or put the phone down as
soon as the unsolicited nature of the call becomes obvious. I don't
really see how you can do both and still give the Commissioner enough to
go on.
Tim Turner
Tim Trent - Consultant
Tel: +44
(0)7710 126618
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