Direct marketing by phone in France: what are the new requirements of the Bloctel opt-out list?

French law n°2014-344 of 17 March 2014 on consumer protection has established a national direct marketing opt-out list named ‘Bloctel’, which will be effective as of June 1^st, 2016. This new list replaces the old ‘Pacitel’ service, which operated on a voluntary basis, and will require all companies wishing to engage in direct marketing operations to check beforehand that their direct marketing records do not contain any numbers belonging to individuals registered on this list.

Which organisations and public are concerned?

This new system concerns all those professionals, whether they are a natural or a legal person, who over the course of their activities may engage in direct marketing by phone to clients and/or prospects, directly or through a third party acting on their behalf.

Because this service was established in the French consumer code, it only concerns those marketing calls directed to individuals who qualify as consumers and who will be able to register their landline or mobile phone numbers on the Bloctel list. The service does not apply to the sending of marketing SMS messages as they are governed by separate consent and opt-out rules and a specific reporting number already exists for this type of direct marketing. Thus, activities of direct marketing by phone which target professionals, i.e. that are carried out in a B2B context, do not fall within the scope of the Bloctel system.

What are the new requirements to engage in direct marketing by phone?

• A new obligation to inform consumers about the possibility to register on the Bloctel opt-out list

Companies collecting consumers’, either clients or prospects’, phone details must inform them of their right to register on the Bloctel opt-out list at the time such data is collected. When the data is collected at the time a contract is made, for instance over the course of a purchase or of the provision of a service, the existence of this right must be mentioned in a clear and comprehensible manner, notably in the contractual documents.

This obligation to inform consumers about the existence of an opt-out list thus comes in addition to the existing requirement, for concerned organisations, to inform individuals about their right to object to direct marketing by phone in accordance with Article 38 of the French Data Protection Act.

• An obligation to consult the organisation managing the Bloctel list prior to engaging in direct marketing by phone

Prior to engaging in any direct marketing by phone, professionals must transmit their direct marketing records to the organisation managing the Bloctel list, called ‘OpposeTel’, so it can check and update the files on the basis of the list of individuals who have objected to receiving any such calls. An updated version of the record will then be sent back to the concerned professional.

Concerning the frequency with which OpposeTel must be consulted, this must be done at least once a month when the professional engages in direct marketing by phone on a regular basis, and before any direct marketing campaign when the professional only uses direct marketing by phone incidentally.

• An obligation to pay a fee

Professionals must pay a fee to the organisation managing the list, OpposeTel, the amount of which has been determined by decree. This fee includes a fixed part (250 € excl. taxes for the subscription fee and 300 € excl. taxes for the annual service usage fee) and a variable part, which is calculated on the basis of the number of solicitations of OpposeTel by the professional (with three possible price options: pay-per-use, unlimited offer and intermediary offer).

• Effective date

Consumers can register on the opt-out list from June 1^st, 2016. A 30 day delay being necessary to process the requests to delete the number(s), these obligations must be respected as of July 1^st, 2016. As such, a consumer who registers on the list on June 1^st, 2016 must therefore no longer receive direct marketing phone calls as of July 1^st, 2016. Registration on the list is valid for 3 years; therefore a person can be contacted again if they fail to renew their expired registration.

Are there any exceptions?

Yes, a professional can engage in direct marketing by phone despite the fact that individuals are registered on the Bloctel list:

• In case of ‘pre-existing’ contractual relations with the individual concerned, i.e. in principle when a contract is in place. For instance, a bank, an insurance company or a telecom operator may continue to solicit their clients by phone to propose new offers; or

• When the calls concern newspaper, periodical or magazine subscriptions; or

• When the calls are made by polling organisations or non-profit associations, as long as they do not constitute commercial prospection calls.

Moreover, although this possibility is not expressly contemplated in the relevant legal provisions, it should also be possible to engage in activities of direct marketing by phone to former clients or prospects who have expressly consented to being contacted by phone for marketing purposes.

What are the sanctions in case the rules are not complied with?

If direct marketing by phone continues despite the individuals’ registration on the opt-out list, they may complain to the French Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (DGCCRF) which will carry out the necessary investigations in relation to the concerned organisations.

If any violations to the above-mentioned obligations are identified, the DGCCRF may impose an administrative fine of up to 15,000 € for natural persons and 75,000 € for legal entities.