Dutch Telecoms Regulator actions against illegal telemarketing

06 July 2006

Gerrit-Jan Zwenne

On 17 May 2006 the Dutch Telecoms Regulator OPTA announced that it will start to enforce the rules applicable to telemarketing, i.e. unsolicited telephone calls for commercial, promotional or charitable purposes. Pursuant to the Telecoms Act such unsolicited calls are only allowed if the subscribers called are actively offered an opt-out, i.e. an option during the call to indicate that he or she does not wish to be called in the future for these purposes. In practice, most call centres do not provide such an opt-out. Further, if the subscriber requests that he or she is not called, call centres often do not comply with that request, much to the annoyance of the subscriber.

OPTA now wants to put an end to this and take a firm line against the most annoying telemarketing practices. To this end OPTA can use a number of investigatory powers and enforcement instruments. OPTA may, for instance, demand the telephone scripts used by call centres. Moreover OPTA carry out ‘dawn raids’ and when a violation has been established, eventually impose fines up to a maximum of €450,000. Such high fines do not seem very likely as OPTA has, with respect to more or less comparable violations of anti-spam provisions in the recent past, imposed fines ranging up to €22,500.

It is important to note that the fines may not only be imposed on the call centres that actually make the unsolicited calls, but also on call centres’ customers, i.e. the company that wants to sell its products or the charity that asks for a donation. This implies that such a company or charity will have to make sure that the call centres adhere to the statutory requirements. A newspaper that wants to sell subscriptions through telemarketing must make sure that the call centre employees provide in each call for the opt-out. The same applies to telephone companies that want to sell subscriptions, insurers that wish to sell insurance products, charities that ask for donations, etc.

For now, however, the scope of the legal protection against telemarketing is restricted. At the moment the Act only provides legal protection to subscribers who are natural persons. As a result telemarketing aimed at companies does not usually fall under the statutory provision in question, as most companies are not natural persons. Further, the legislation does not cover telemarketing aimed at natural persons who are not themselves subscribers, for example such as housemates of the subscriber.

Naturally OPTA will focus on the most pressing violations. Therefore it announced that first it will deal with ‘cold calls’, i.e. unsolicited calls to consumers who have no relationship whatsoever with the company that wants to sell its services or the charity that asks for a donation. Such cold calls provoke the highest irritation and most likely these will entail the most complaints. OPTA has not yet made known how complaints can be submitted. Most likely OPTA will setup a special website, similar to the website setup for violations of anti-spam legislation.