A Data Protection Guide to the use of the National Directory Database by Direct Marketers.
The National Directory Database (NDD) has traditionally existed as a directory enquiries tool and as a means of producing telephone directories. With its change of license resulting from the provisions of SI 336 of 2011, the NDD also operates as a form of national telemarketing opt out register. Those persons wishing to contact subscribers by telephone for the purpose of direct marketing are obliged, under certain circumstances, to consult the NDD before making such calls.
The NDD Rules
The NDD Opt-Out Register gives added responsibilities to telemarketers and rights to telephone subscribers. All subscribers now have the right to get their preference not to receive marketing calls recorded in the NDD.
A person who wishes to make a marketing call to either a residential or commercial subscriber must respect a preference expressed in the NDD. This obliges telemarketers to check the NDD before making such calls.
In the case of faxes to commercial subscribers, telemarketers must also consult the NDD and respect a recorded preference.
All ex-directory telephone numbers are automatically included in the NDD Opt-Out Register.
The Regulations governing unsolicited communications and the NDD are terse and do not go into detail on any exceptions. The Office of the Data Protection Commissioner has identified some practical issues that may be of interest to those engaged in telemarketing. What follows is not a definitive list of all that can result from the use of the NDD, but may help telemarketers keep within the law. If you are still unsure about certain actions or procedures, you are advised to contact this office to discuss the matter.
1. A business contacting a customer.
If a business, such as a bank, has obtained phone details from a customer and that customer has not informed the bank that he/she does not want to receive marketing calls from the bank, then the bank will not be in contravention of Regulation 13 of SI 336 of 2011 if it calls that customer and promotes the bank's products or services - even if that customer has recorded on the NDD a preference not to receive marketing calls. The specific (implied) consent a bank has to contact a customer overrides the general opt-out in the NDD.
In general, telephone contact details obtained in the course of an ongoing commercial relationship can be used in the context of that relationship irrespective of any preference recorded in the NDD.
2. A person running a competition contacting entrants.
This is similar to 1 above, in that an entrant has supplied contact details in the context of entering a promotion. The promoter may contact that person in connection with that specific promotion on the basis of that consent, and may be able to contact that person in relation to similar promotions irrespective of any preference recorded in the NDD.
Similarly, if the competition promoted a particular product/brand/service, it may be possible to contact entrants about that product/brand/service without having to consult the NDD.
3 Are there any exemptions for types of bodies (charities; clubs; schools)?
The only exemptions from these regulations are:
- Individuals contacting people as part of the management of their personal, family or household affairs or for purely recreational purposes.
4. If I capture an incoming number (via CLI), even though the caller does not know I've done this, can I phone him back?
Even though in theory all subscribers should be aware of the ability to block the display of Calling Line Identification, the harvesting of such numbers for marketing purposes is difficult to justify. That the technologically aware might know of this potential does not help deal with the less informed. Consequently, unless a person actually volunteers a number, that number should not be automatically harvested for marketing purposes.
5. If a person provides a number in the context of a general lifestyle survey, does this consent override the preference in the NDD?
The key point here is the circumstances under which the number is recorded and later used. If the survey explicitly states that details will be used by other marketing organisations, that legitimises use irrespective of any preference recorded in the NDD. Similarly, if the consent in the survey was company specific this legitimises contact by that company, but restricts sharing or use by other parties.
One important qualification is the frequency with which such numbers are used and how current the consent is. A person who is listed on the NDD as not wanting to receive marketing calls and later gives consent to general marketing, cannot expect that the NDD consent has precedence. However, if a person enters a survey and gives consent to general marketing, such consent is not open ended but is timebound. If that consent is not kept current, then a subsequent preference recorded in the NDD would reasonably be seen to have precedence. Consequently, if general consents are to be relied upon, procedures must be in place (and followed) to update that consent and keep it current.
It is important, therefore, that marketers manage consent properly, including noting when consent was obtained and when it was updated.
6. Can one person in a household change the consent given by another?
Technically only the subscriber can give or withhold consent, but this presents practical difficulties. It is primarily the subscriber's responsibility to ensure that other users of the line are not giving contradictory instructions to the NDD or to Direct Marketers.
7. Can a business have different preferences on different lines?
It is up to the subscriber to decide what preference shall apply to each line to which he subscribers. This may well result in different preferences being expressed on different lines, for example fax or voice lines.
8. Do these regulations apply to market researchers?
Market Research can, in some instances, be seen to be a form of Direct Marketing. Surveys may need to be examined on a case by case basis, but as a rule of thumb, if the research involves the promotion of a product or service, that would constitute direct marketing and make that particular survey a form of direct marketing and thus subject to these regulations.
A key test in determining if a survey promotes a product/service is whether the person being called is encouraged to respond by requesting further information about a product or service. Thus, if the researcher is not in a position to identify the product/brand/service to the person being called, this will make it difficult to conclude that such contact was made for the purpose of direct marketing.
9. When might a marketer not need to consult the NDD?
If the marketer has obtained the contact phone numbers from a source that has obtained consent from the subscribers and that consent includes use by third parties, provided such consent is current. If the marketer has compiled a list of contact numbers from subscribers, any use for direct marketing is subject to the terms of consent when the numbers were obtained.
10. If I have used the phone directory over a long period to contact people, but few if any have objected to my calling them again, can I continue to use this database without consulting the NDD?
It depends on how you have managed consent. If you phoned people regularly and they never objected because they were never asked, that consent is difficult to demonstrate let alone rely upon. However, if you asked people if they wanted to object to receiving calls in future (to opt-out), then those that did not object are on a database that you can continue to use without having to consult the NDD.
11. How do I clean my database(s) against the NDD?
There are two principal ways:
- You obtain access to the NDD updates by entering into a licensing agreement with eircom Limited, or
- You employ a person who has access to the NDD updates to clean your database for you.
12. Do I have to tell people that they can get their preference recorded in the NDD?
No, that is not your responsibility. Any subscriber who does wish to have his/her preference recorded must contact his/her own phone company who will then arrange for the appropriate action to be taken. Subscribers should not directly contact the NDD.