Can Organisations Rely on Existing Personal Data to Continue Telemarketing?

10 April 2014

Dharma Sadasivan

As the Do Not Call ("DNC") Registry provisions of the Personal Data Protection Act 2012 ("PDPA") come into force, many business-to-consumer marketing departments are faced with the problem of ensuring that existing customer telemarketing databases are DNC-compliant. In order to contact consumers who have registered with the DNC Registry via telemarketing, businesses must obtain "clear and unambiguous consent".

I can practically hear staff exclaiming "MORE compliance?" in consternation and exasperation. Some of them will be concerned about internal auditors finding new ways of penalizing their departments.

It's not unexpected that some organisations may experience internal resistance in the face of the strict "clear and unambiguous" consent requirements of the DNC regime – customer databases could have hundreds or thousands of entries. How do you go about obtaining fresh clear and unambiguous consent efficiently and with minimal loss to the size of the database? Organisations with huge telemarketing lists face a tough challenge.

The PDPA provides for personal data collected before the enactment of the PDPA to continue being used for the same purposes. If the purpose of that personal data was to conduct telemarketing campaigns, can organisations rely on this paragraph to avoid having to trawl through their databases collecting fresh consent?

The short answer is "no."

At the heart of this issue is that, while the DNC regime is housed within the PDPA, it imposes a separate set of obligations, quite apart from the personal data obligations imposed by the PDPA. Hence, while information collected prior to the PDPA can indeed be used for the same purposes that it was used for before the PDPA, it must still be DNC-compliant to avoid a breach of the DNC regime.

This means that you can only continue to telemarket without getting fresh clear and unambiguous consent if you somehow previously managed to obtain clear and unambiguous consent before the DNC regime kicked in. Don't forget that people can also withdraw their clear and unambiguous consent at any time as well. If they have withdrawn their consent, you can't telemarket to them.

Undoubtedly this places a heavy burden on marketing departments, but breaching the DNC regime is a criminal offence. Stay safe, be conservative and obtain clear and unambiguous consent.

Dharma Sadasivan
Associate Director, Bernard & Rada Law Corporation
dharma@brlawcorp.com

Post date. Edit this to change the date post was posted. Does not show up on published site. 10/4/2014

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The materials in these articles have been prepared for general informational purposes only and are not legal advice or a substitute for legal counsel. If you require legal advice for your particular circumstances, please consult a suitably qualified legal counsel. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not rely or act upon this information without seeking professional counsel. Whilst we endeavour to ensure that the information in these articles is correct, no warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. The authors of the articles are or were employees of BR Law Corporation at the time of publication, but may no longer be, now or in the future, in the employ of the firm.

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