I thank the noble Baroness and, of course, we will check on it. I suppose that the general point is that phone marketing is more successful than street, doorstep, direct mail, and so on. Changing an opt-in system can diminish a charity’s income, and that is our concern. Charities are subject to the same rules as those applying to marketing companies. That point may be of concern to my noble friend Lord Deben, who spoke with such energy on this subject.
Calls to consumers who are registered with the Telephone Preference Service, provided they have not given explicit consent to receive such calls, are already outlawed under the Privacy and Electronic Communications Regulations. The Government’s view is that those breaking the law by calling consumers registered with the Telephone Preference Service are just as likely to
ignore any new law that is introduced, regardless of whether the system is opt-in or opt-out. Tackling marketing calls would, in our view, be better addressed in focusing on better enforcement, and we are taking action in this area. We have ensured that the monetary penalties, which the Information Commissioner’s Office and Ofcom can use, have been increased and issued more frequently to those breaking the regulations. Since January 2012, more than £2 million in monetary penalties has been issued by both regulators.
We have also made it clear that regulators need to continue to take strong action to send a signal that those who flout the rules will be caught and punished. Persistent offending companies are now named and shamed on the Information Commissioner’s Office website, so that those who make those marketing calls are made known to the public. Informed consumers are safer consumers.
The noble Baroness, Lady Hayter, said that it was very hard to know how to complain. Ofcom’s website, as she may know, has been revamped to provide comprehensive information for consumers on where to go about nuisance calls. I have talked to Ed Richards about this because he realises how important it is. Ofcom has found that most people go to their service provider in the first instance, which in turn passes them on to Ofcom. There is now much more collaboration between regulators sharing their knowledge and expertise to improve compliance.
Changes have been happening as the Bill has progressed. I mentioned the action plan, and on 25 October Ed Vaizey launched a consultation on lowering or removing the legal threshold for fining firms who make unsolicited marketing calls. The efforts of the Information Commissioner’s Office to impose penalties are currently frustrated by the legal requirement to demonstrate that nuisance calls cause substantial damage or substantial distress—especially given the volume of calls, mentioned by the noble Baroness, Lady Hayter. I am slightly surprised by her comments because, while there are two options in the consultation, which we have to take into account before making a final decision, the Government’s preference is to remove the threshold and give the commissioner the greatest scope to take action. This will help to solve the commissioner’s current frustrations. The consultation ends on 6 December and we expect the secondary legislation to implement the resulting changes to come into force in February—a more rapid avenue than in this Bill.
Amendment 105G would require businesses and other persons making unsolicited calls for direct marketing purposes to provide caller line identification. We are sympathetic to this amendment, as the noble Baroness knows, because we have discussed it, and agree that the current situation can be very frustrating when callers deliberately fail to provide their CLI. Unfortunately, however, mandatory CLI is not permissible under EU law. The EU privacy directive provides that callers, both individuals and businesses, must be allowed to withhold CLI. The directive allows for limited exceptions for the specific purpose of tracing calls, but that would not apply to this amendment, which covers all businesses and individuals making unsolicited calls for direct marketing purposes.
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Before the introduction of CLI services in the UK in 1994, discussions were held about the privacy and data protection issues involved in enabling CLI to be provided for calls. A general agreement emerged that callers should be able to withhold their number legitimately, citing examples such as calls from refuges for victims of domestic violence, calls from informants and calls to charitable helplines. Therefore, a decision was taken that CLI services would be offered only where the caller could withhold their identity. Similar discussions took place in other countries where CLI was made available, with similar conclusions being drawn in those countries.
This agreement was reflected in the e-privacy directive. We accept that these rules need to be reconsidered in the light of the changes of the last 20 years and we will raise this issue at the EU level the next time we can. However, in the mean time, action is being taken, as set out in the Nuisance Calls Action Plan. Where the CLI is withheld, the Direct Marketing Association has a code of practice in place for its members, which requires all outbound marketing calls to include a valid calling number. Ofcom has a statement of policy on persistent misuse, which it backs up and which sets out that callers should provide valid and accurate CLI for all calls that are made by predictive diallers, which noble Lords mentioned.
In situations where CLI is withheld, consumers are advised to make a note of as much information as possible and to report such calls to either Ofcom or the Information Commissioner, so that they can monitor the situation. Interestingly, such numbers can be monitored, as the withholding of CLI by itself usually only has the effect of concealing the number from the person receiving the call. The number normally remains visible to service providers for law enforcement and for malicious or nuisance call tracing purposes.
We do not agree with Amendment 105, as the provision of CLI services for incoming calls is a commercial matter for service providers, and we do not think that it is right for the Government to intervene on that. However, we also do not think it appropriate to compel communication service providers to offer CLI services free of charge. They have invested in the equipment for this and deserve a return. I do not think that there is the level of harm needed to impose the heavy regulatory burden of introducing new equipment in large numbers of households.
However, it should be noted that competition is at work in a favourable direction. Since 15 January, free CLI has been provided for the benefit of consumers by TalkTalk, as part of its services for subscribers. My hope is that other service providers will follow that example and make CLI available free of charge too. For the benefit of consumers who are not TalkTalk customers, Ofcom publishes detailed information on its website about the main services offered by each phone company. This helps consumers to protect themselves more effectively against nuisance and other kinds of calls and to compare services and charges that may apply to them. Alongside other factors including the subscription price, this helps consumers make up-to-date and informed decisions about their choice
of services and provider. The switching that has been encouraged under this Government has been a major boon to the consumer and has helped to keep prices down.
I am also concerned that although the intended aim of Amendment 105H might be to tackle the specific problem of nuisance calls, it would have wider consequences than merely affecting nuisance calls. The proposal is to remove the existing obligation on the Information Commissioner to consider whether a breach of the Data Protection Act has resulted in distress or damage. The proposed change to the requirement would apply in relation to any contravention of that Act or of the Privacy and Electronic Communications (EC Directive) Regulations, regardless of whether the contravention related to nuisance calls or for some other breach. We believe that this would send out the wrong message in respect of data protection. The provisions in Sections 40(2) and 55A(1)(b) apply not only to nuisance telephone calls but to the enforcement of breaches of the Data Protection Act 1998 more generally. At present the Information Commissioner is required to have regard to the consequences, or likely consequences, of a breach upon any person in terms of distress.
I am sorry to lay this all out in some detail but obviously it is very important for the debate that we look at the individual amendments. The Government agree that effective legislation needs to be in place for the protection of consumers. I fully recognise the importance of the issues raised in the debate today, which is why, as we just discussed, we will raise this issue with the Information Commissioner to see if anything can be done.