It is the ‘caller’ or the ‘instigator’ of the call who has responsibility for complying with the rules. PECR do not define the term instigator. However, you are likely to be instigating if you encourage, incite, incentivise or ask someone else to make live calls containing your direct marketing message.
For example, if you ask someone else to make live marketing calls for you, then you might be the instigator and the party who is making the calls is the caller. This can mean you both have responsibility for complying with PECR.
If you want to use someone else to make your marketing calls, you should undertake appropriate checks to have confidence in their reliability from a compliance point of view. You should also have a written contract with them that sets out their responsibilities. If you’re using personal data, then you must have a contract with the organisation sending marketing on your behalf.
PECR says that you must not allow others to use your phone line to breach the live marketing call rules. You therefore must make sure that your communications comply with PECR, if you want to:
use your line to make live marketing calls on behalf of someone else; or
let someone else use your line to make such calls.
What are the rules on making most types of live marketing calls?
In general, you don’t need consent under PECR to make most types of live marketing call. For most types of live call, you can make unsolicited marketing calls to people and businesses if:
they have not objected to your live marketing calls (you must not call someone who told you they do not want your marketing calls); or
the number is not listed on the Telephone Preference Service (TPS), or in the case of corporate subscribers the Corporate Telephone Preference Service (CTPS) (see what is the Telephone Preference Service? for more information).
It is important to remember that your live marketing calls may also be affected by the rules and standards of other regulators. For example, the Financial Conduct Authority (FCA) has rules banning certain types of cold-calling. You should know about all the rules and standards that apply to you.
What does “solicited” and “unsolicited” mean?
Some of the rules on live marketing calls only apply to “unsolicited” calls.
Live marketing calls are solicited if someone specifically asks you to call them with marketing information. You can call someone about a particular promotion if they ask you to. In this case, most of the PECR rules don’t apply (eg you don’t need to check the number against the TPS).
A customer asks a company to call them to discuss the service it offers. The company then calls them. This marketing call is solicited because the company is responding to that person’s request.
Unsolicited means any marketing message that someone hasn’t specifically requested. Agreeing or not objecting to receiving live marketing calls from you doesn’t mean the marketing is solicited. It still counts as “unsolicited” for the purposes of PECR. However, this doesn’t necessarily stop you from making the call. You just need to comply with PECR’s rules on live calls as normal.
You can make unsolicited live direct marketing calls to numbers that aren’t on the TPS or CTPS, but only if there’s no previous objection to your calls. It’s likely that making calls in these circumstances means this unsolicited marketing is lawful.
Likewise, you can make unsolicited direct marketing calls to someone who has generally “opted-in”, agreed or consented to receive these. This would mean that they are happy to receive further marketing. It is also likely to mean that your unsolicited marketing is lawful.
The Telephone Preference Service (TPS) and the corporate version, the Corporate Telephone Preference Service (CTPS), are statutory registers of those who don’t want to receive live marketing calls. They both work in the same way, but the CTPS is for corporate subscribers to use.
It’s free to add any telephone number to the list (including mobile numbers). The numbers must feature on the register for 28 days for it to take effect.
These registers act as a general objection to receiving live direct marketing calls. If you want to make live marketing calls, you must check phone numbers against these registers before you make the calls. This is so that you don’t call a number that is listed.
What are the rules on making live marketing calls about claims management services?
If you are considering making live marketing calls about claims management services, you must take into account that the rules are different to other types of live calls. These rules are stricter than other types of calls (with the exception of pension scheme calls).
PECR says claims management services means the following services when making a claim:
Financial services or assistance.
Acting on behalf of, or representing, a person.
Referring or introducing one person to another.
The term ‘claim’ means for example, a claim for compensation, repayment, or any other remedy for loss or damage or due to an obligation. This covers whether the claim is made or might be made:
by way of legal proceedings;
in accordance with a scheme of regulation (whether voluntary or compulsory); or
in pursuance of a voluntary undertaking.
You can only make direct marketing calls about claims management services if the person you are calling specifically consented to your calls. This means that you do not need to check against the TPS or CTPS, because you must have consent. This is unlike other types of direct marketing calls. For more information on consent see What is consent?.
What are the rules on making live marketing calls about pension schemes?
If you are considering making live marketing calls about pension schemes (eg occupational pensions or personal pensions) it is important to understand that the rules on this type of call are very strict. You are only allowed to make this type of live marketing call in specific circumstances.
PECR says that direct marketing of pension schemes includes:
marketing a product or service that someone would buy using funds held, or previously held in a pension scheme;
offering advice or another service that promotes, or promotes consideration of, withdrawing or transferring funds from a pension scheme; or
offering advice or another service to enable the assessment of the performance of a pension scheme (including its performance in comparison with other forms of investment).
You can make live direct marketing calls about pension schemes if you meet all the requirements of the specifically defined exception.
For the exception to apply, firstly you must be a trustee or manager of an occupational or personal pension scheme or authorised by the Financial Conduct Authority (FCA).
Secondly, you must either have that person’s consent to receive the calls, or your relationship with them must meet this strict criteria:
You have an existing client relationship with the person you are calling (this doesn’t include a relationship that you established primarily so that you could make such a call).
That person might reasonably envisage such a call from you.
You gave them a chance to opt-out of such calls when you collected their details and in every communication you send them.
In general you don’t need consent to make most types of live marketing calls. But you may need consent to make live marketing calls about claims management services or pension schemes. Or you may simply decide that you want to ask for consent to your live marketing calls even though PECR may not require it.
PECR takes its standard of consent from the UK GDPR, which says consent is:
“any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”
This means that if you are seeking consent for your live marketing calls:
you must give people a free choice to consent so that they can refuse without detriment and you must keep the consent separate from other things such as terms and conditions (freely given);
you must make it clear that the consent covers your live marketing calls and you must give your name in the consent request (specific and informed);
you must have no doubt that they are consenting to your live marketing calls (unambiguous indication); and
they must take a positive action to consent, so you mustnot use pre-ticked opt-in boxes, silence or inactivity (clear affirmative action).
You should keep a record of the consent (eg who, when, how) so that you can demonstrate it is valid.
People can also withdraw consent and you must make this easy to do. If someone withdraws their consent, you can no longer make live marketing calls to that number. See the section Can people object to our live marketing calls? for further information.
A company provides the following information when it collects customer details:
☐ Tick here if you would like to receive live marketing phone calls from us about our services. You can change your mind at any time by logging into your account and updating your marketing preferences.
If customers decide to tick the box, the company has consent to make live marketing calls to them.
What information do we need to provide when making live marketing calls?
When you make a live marketing call, you must display your number (or a valid alternative contact number) to the person receiving the call. You mustnot withhold your number when making direct marketing calls.
You must also:
say who is calling (eg the name of your organisation); and
provide contact details or a Freephone number for your organisation if asked.
These rules apply to both solicited and unsolicited live marketing calls.