What does the legislative change to the Telecommunications Act for your organization?
What has changed since July 1, 2021
Specifically, the changes effective July 1, 2021 include the following four items:
- Telemarketing directed at natural persons (these are consumers, VOFs, sole proprietorships/ZP-ers, CVs, and partnerships) is only permitted when explicit permission (opt-in) has been given. Valid consent follows the requirements of the General Data Protection Regulation (GDPR).
- However, natural persons with whom there is a customer relationship may be called without consent. The State Secretary of Economic Affairs and Climate (EZK) may decide to limit the term of the customer relationship after mid-2021.
- Telemarketing is permitted only when calling a recognizable (i.e., not anonymous) number. This also applies to telemarketing to legal entities.
- The burden of proof that consent or a customer relationship exists will rest with the company calling consumers or natural persons. The idea behind this is that it makes enforcement of telemarketing violations easier.
What does opt-in even mean?
The opt-in system means that consent is required for telephone calls with a commercial, charitable or ideal purpose. Opt-in is the explicit consent that must be freely’, ‘specific’, ‘informed’ and ‘unambiguous’ according to the AVG. These components of consent must also be so documented and capable of being demonstrated.
‘Free’ implies that the consent sought should not be a condition of anything else. There should be no dependence of the person on the organization. This is the case, for example, if the person is employed by the organization. Finally, the individual must always be able to withdraw the consent given without further consequences. ‘Specific’ means that the request for consent must include very specifically the purpose(s) of the processing. ‘Informed’ means that the request for consent should briefly but clearly state the content and purpose of the processing and the right to withdraw consent. ‘Unambiguous’ means that the action the person takes to give consent must clearly describe what the person is consenting to.
There are some exceptions to this permission requirement:
Service calls
Telephone contact where no commendation is made for products or services is permitted. The so-called service call is informative and relevant to the person you are calling.
Customer relationship
A customer relationship exists when a commitment to a financial transaction has occurred. The phone call must be made from the same legal entity and it must involve proprietary and similar products or services that logically belong to the company’s offerings.
The right to object remains, because the law still requires that in every telephone call the possibility be offered to the (potential) customer to unsubscribe from telemarketing. Finally, when asking for a phone number, the opportunity to object (opt-out) should always be offered.
Do you have questions about the amended Telecommunications Act or want to discuss your options? Please feel free to contact us.
