Working with Foreign Call Centres and the TPS
Article added: 01/09/2016
Many of us will have worked with, heard of or received a call from a foreign call centre at some point in time. We know they exist, we know people use them, but has your business ever been tempted to use one?
Here are some helpful tips on the Do’s and Don’ts when using a foreign call centre and what you need to know about the Telephone Preference Service (TPS).
The TPS is a central opt out register whereby individuals can register their wish not to receive unsolicited sales and marketing telephone calls. It is a legal requirement that companies do not make such calls to numbers registered on the TPS.
The original legislation was introduced in May 1999. It has subsequently been updated and now the relevant legislation is the Privacy and Electronic (EC Directive) Regulations 2003 or PECR (pronounced “peck-ra”).
Does the TPS apply to foreign call centres?
Yes, it does if the call centre is making calls on behalf of a UK based organisation. It does not apply if the call centre is making calls on its own behalf. However, if only life were that simple. Read on...
Call Centres working on your behalf
If you employ the services of a foreign call centre to make calls on your behalf then they are representing your business. If, when they place the calls, they identify themselves with your business name then you will be responsible for any TPS complaints. In addition the UK based organisation could be subject to enforcement action by the Information Commissioner Office (ICO). The ICO will publically notify through its quarterly report on current investigations that your organisation is under investigation. This may lead to a civil monetary penalty notice up to a maximum of £500,000 against your organisation and, of course, a loss of potential business.
If, on the other hand, they make calls using their own name and then transfer (whether in the form of a database, spreadsheet or a hotkey) only successful calls to your business then you may still be liable as the instigator of the call. This means that you asked for the call to be made and furthermore that the purpose behind the call was the intention to transfer the successful leads to your business.
Surveys are probably one of the most common tasks undertaken by foreign call centres and are now probably one of the most commonly misused terms in the data and lead generation industry.
Oxford Dictionary Definition
Investigate the opinions or experience of a group of people by asking them questions.
For example: “95 per cent of patients surveyed were satisfied with the health service”
“Investigate behaviour or opinions by questioning a group of people”
For example “The investigator surveyed the attitudes and beliefs held by residents”
What it is not
“Call people, ask them a lot of questions, then sell them something”
The origination of the Survey
So as to avoid any confusion, let us be clear that you can still call people registered on the TPS if you are conducting genuine market research and this is because Regulation 21 of PECR only applies to calls made for “direct marketing purposes”.
The use of the term Survey by much of the data industry originated from the fact that way back in the day, you could still call people registered on the TPS if you were conducting “market research”, in other words you weren’t cold calling.
The industry latched onto this and started calling everything “a Survey” as if to infer every call was a market research call and so the TPS did not apply.
Nowadays, it has become a recognised term of use by the data industry.
A survey is now a common method of data acquisition
The Industry’s definition of a Survey
“We call people, ask them a bunch of questions and sell the answers to you so that you can spend your time only calling people who fit your criteria… rather than random cold calling”.
They would be more correctly labelled as Questionnaires.
Can I buy Data from a foreign company that’s on the TPS?
Yes you can, but you can’t use it and here’s why not...
Direct (sometimes called Specific) opt-in - Where you might buy data that’s registered on the TPS and where it’s been opted in for your company i.e. “Would you like to receive a call from Mikes Windows about your double glazing requirements and to get a quote?”
The problem here is that the process of opting the record in to your business effectively means the call was made on your behalf and therefore you are now responsible for any TPS complaints.
Indirect (sometimes called General) opt-in – Where you might buy data that’s been opted in to receive a call from a non-specific company i.e. “Would you like to receive a call from someone to give you a quote for some new windows?”
The problem here is that in order to call someone registered on the TPS you have to comply with the Privacy Electronic Communications Regulations (PECR) and that requires Direct Consent to send a text, email, automated voice or to call someone registered on the TPS. Therefore, an indirect opt-in is insufficient.
No opt-in – Where the question has ascertained a persons need, desire or interest in (say) new windows, but no further questions have been asked to ascertain their permission or interest in receiving further communications from anyone.
The problem is twofold. Firstly, you would fall foul of the fact that you don’t have a Direct opt-in (as explained above) and secondly, you would not even have indirect consent to make use of their data meaning that you are not only breaching PECR, but also the Data Protection Act 1998.
The ICO, the TPS and foreign call centres
You may ask why, if there are so many foreign call centres are calling people registered on the TPS, doesn’t the ICO do something about it?
It can be difficult to get your head around, but basically the UK only has jurisdiction over things that happen within the UK. So the effect of someone in another country calling people in the UK who are registered on the TPS is that the ICO has no jurisdiction over them.
They do, however, have jurisdiction over any companies in the UK making use of such data afterwards and this where many companies will fall foul.
So what can I do?
Some foreign call centres are TPS compliant, but if you plan to use a foreign call centre be aware that the principle of the TPS still applies and if you think that by having them call people registered on the TPS is in some way getting around the TPS, be aware that it won’t work. You should only use foreign call centres to provide you with data or leads if they are properly screening their data against the TPS.
If you operate in a regulated industry such as Claims (regulated by the Claims Management Regulator – CMR or MOJ) or Finance (regulated by the Financial Conduct Authority – FCA), businesses have additional rules placed upon by them by the regulators that go beyond the scope of the Data Protection Act and PECR so you would definitely fall foul of both regulators if you decided that you could somehow acquire data from a foreign call centre, registered on the TPS with a so called ‘opt-in’ to call, text, email or send automated voice messages to.
All that said, a person registered on the TPS can still, for example, complete a web form and request a call back.
Provided you meet the 3 required rules:
- The consumer has have given their consent for YOUR BUSINESS to contact them.
- The consumer has consented to the METHOD OF CONTACT (such as text, voice or telephone call or all three); and finally.
- The consumer is aware WHAT THEY WILL BE CONTACTED ABOUT.
If you meet all 3 rules, then you will be properly placed to contact them even if their number is registered on the TPS.
You can expect these 3 rules to form the basis of how Direct Consent will need to be collected once the new General Data Protection Regulations (GDPR), or the post-Brexit equivalent thereof, are implemented in May 2018 so companies would be wise to be looking at making changes to their data collection, selling and purchases processes now in order to stay ahead of the game.