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 If they have withdrawn their consent, you can't telemarket to them.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.
Associate Director, Bernard & Rada Law Corporation
The posts found in this Law Blog are not legal advice, nor are they given for the purpose of providing legal advice.
You should contact your lawyer for legal advice if you need legal assistance.