The Telecommunications Act has changed; what does that mean for your organization?

Several businesses use telemarketing to acquire customers and advertise their products. Everyone is familiar with the dinner-time phone call from a charity to get you to become a donor.

Among other things, the Telecommunications Act contains rules for these types of telephone offers. This law has been substantially amended effective July 1, 2021. The following discusses the most important changes with implications for you.

Amendment 1: Opt-out becomes opt-in

The first and perhaps most drastic change is that an opt-in system now applies instead of an opt-out system. Previously, a person could simply be called for telemarketing and had to register in the Do Not Call Registry if they did not want it. Now you must have prior consent before someone can be contacted for telemarketing, unless there is a customer relationship.

Valid consent is governed by the General Data Protection Regulation (AVG). The AVG sets forth a number of requirements for valid consent, namely that:

• the consent is freely given. In other words, consent must be given completely freely. This means, for example, that refusal of consent must not have negative consequences;
• the consent is unambiguously given. There must be a clear active action. This is the case, for example, when someone clicks on your website that they are open to telemarketing, leaving their phone number, for example;
• consent is given in an informed manner. This means a person must be fully informed about what giving consent to telemarketing entails. For example, what products or services does the consent apply to and for how long? In addition, it is important to inform the "recipient" of his right to withdraw consent at any time without negative consequences and how he can do so;
• consent is given specifically. The recipient must give consent specifically for telemarketing. For example, it is not enough if someone puts a single check mark that "he grants permission to be contacted for commercial purposes.

The opt-in system has made the Call-me-not register redundant and will be dropped. The right to object remains, as the Telecommunications Act requires every telephone call to explicitly offer the person approached the opportunity to opt out of telemarketing.

Legal entities may be approached without permission. However, you must be careful about the type of legal entity you want to contact. Various legal entities, such as a general partnership or a sole proprietorship, use private numbers. In that case, they may only be contacted by telephone with permission.

Change 2: Customer relationships may be contacted without permission

There is one exception to the opt-in system. In fact, when a customer relationship exists, a person may be contacted even if he has not given his consent.

A customer relationship exists, for example, when the person in question has purchased something from you. In that case you may contact this person by telephone, also with a commercial message. However, you may only do this in order to offer your own and similar products, and you must inform the person in question that he can object to the telemarketing free of charge and in a simple manner.

You may contact customers by phone for offers up to 3 years after their purchase. Thus, three years after the conclusion of the agreement in question, the customer relationship ends and you may only contact this person by telephone with permission.

Amendment 3: Recognizable number required

Previously, it was permitted to contact individuals anonymously by telephone with offers. The Telecommunications Act was amended in the third place on this point, so that telemarketing is now only allowed with a recognizable number. This applies to contacting both natural and legal persons by telephone.

Amendment 4: Burden of proof is on the telemarketer

Finally, the Telecommunications Act places the burden of proving consent (opt-in) or the existence of a customer relationship on the business owner using telemarketing.

To meet this burden of proof, for example, you can maintain a register. In it you can record on what basis a person can be approached: granted permission or a customer relationship. In addition, you can record in the register when and how the permission was granted or the customer relationship arose, where you can also record until when someone can be approached.

Do you have questions about the changes to the Telecommunications Act or would you like to spar about what the changes mean for your business? If so, please contact our specialists.