Disclaimer

The new DPC website is currently under construction. Our latest guidance in relation to GDPR, which comes into effect on 25th May, 2018, can be found at gdprandyou.ie and via pages on this website starting with "NEW" as per the navigation pane on the left. All other material on this site relates to the previous legislative regime under the Data Protection Acts 1988-2003 ("the Acts"). While the Acts may continue to apply in some circumstances, as of 25th May, 2018 the GDPR is the primary piece of legislation governing data protection.

Data Protection Commission

Guidance Note for Electronic Communications Service Providers on direct marketing telephone calls to their Subscribers and former Subscribers.

Set out below is the position of the Office of the Data Protection Commissioner on direct marketing telephone calls by Electronic Communications Service Providers to their Subscribers and former Subscribers. This position is based on the legislative requirements concerning unsolicited communications as set down in S.I. No. 535 of 2003 - European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 and in Sections 2(7) and 2(8) of the Data Protection Acts, 1988 and 2003. 

Subscribers to one telecommunications company for a single billing service.

This relates to subscribers who receive both call and line rental services from one telecommunications company (service provider). In such cases, the service provider who is currently supplying the service may telephone the line of their subscribers for direct marketing purposes such as alternative tariff plans, additional value-added services, etc. The NDD opt-out preference does not apply in such cases. However, the wishes of any subscriber who has indicated whether orally or in writing to their current single billing service provider that they do not wish to receive marketing calls must be respected and they may not, therefore, be telephoned for such calls once they have indicated such a preference. Furthermore, all other service providers must respect the NDD opt-out preference (if expressed) of non-customers (who are single billing subscribers of a different service provider) in relation to direct marketing telephone calls. An opt-out preference indication in the NDD must always be respected by such service providers unless the particular service provider can credibly demonstrate that it has obtained a separate clear direct marketing consent directly from the subscriber in question. A particular point arises in respect of single billing service subscribers who have terminated a business relationship with one or more previous service providers. In such circumstances, any opt-ins for direct marketing which were previously given to those service providers prior to the termination of the business relationship will be presumed to be expired. 

Subscribers to carrier pre-selection services.

This describes a subscriber who opts in advance for certain types of calls (International, National, All calls) to be carried by one or more service providers. In such cases, service providers who are providing the pre-selection services may telephone the line of their current subscribers for direct marketing purposes such as alternative tariff plans, additional value-added services, etc. The NDD opt-out preference does not apply in such cases. However, the wishes of any subscriber who has indicated whether orally or in writing to their service provider that they do not wish to receive marketing calls must be respected and they may not, therefore, be telephoned for such calls once they have indicated such a preference. Furthermore, all other service providers must respect the NDD opt-out preference (if expressed) of non-customers (who are carrier pre-selection subscribers of different service provider(s)) in relation to direct marketing telephone calls. Equally, the line rental service provider and/or ancillary services provider (services relating to the line rather than to calls, e.g. ISDN or CPS rental) must respect the NDD opt-out preference (if expressed) of such subscribers in relation to direct marketing calls for all services other than line rental service and/or the ancillary services in question as well as the wishes of any such subscriber who has indicated to their line rental and/or ancillary services provider that they do not wish to receive marketing calls. An opt-out preference indication in the NDD must always be respected by such service providers unless the particular service provider can credibly demonstrate that it has obtained a separate clear direct marketing consent directly from the subscriber in question.

Subscribers to carrier selection services.

This relates to subscribers who opt on a call-by-call basis for certain types of call (International, National, etc) to be carried by one or more service providers. In such cases, service providers who are currently providing the carrier selection services may telephone the line of their current subscribers for direct marketing purposes such as alternative tariff plans, additional value-added services, etc. The NDD opt-out preference does not apply in such cases. However, the wishes of any subscriber who has indicated whether orally or in writing to their service provider that they do not wish to receive marketing calls must be respected and they may not, therefore, be telephoned for such calls once they have indicated such a preference. Furthermore, all other service providers must respect the NDD opt-out preference (if expressed) of non-customers (who are carrier selection subscribers of different service provider(s)) in relation to direct marketing telephone calls. Equally, the line rental service provider and/or ancillary services provider must respect the NDD opt-out preference (if expressed) of such subscribers in relation to direct marketing calls for all services other than line rental service and/or the ancillary services in question as well as the wishes of any such subscriber who has indicated to their line rental and/or ancillary services provider that they do not wish to receive marketing calls. An opt-out preference indication in the NDD must always be respected by such service providers unless the particular service provider can credibly demonstrate that it has obtained a separate clear direct marketing consent directly from the subscriber in question.

Subscribers who change telecommunications company.

This relates to (i) subscribers who terminate their existing contract with their telecommunications service provider for both call and line rental services and (ii) subscribers who terminate their existing contract with their telecommunications service provider for carrier pre-selection or carrier selection services (as described above) where such services were the only services that were availed of by the subscriber from that service provider. Such termination of contract brings subscribers into the category of former subscribers of the service provider in question. Consent given by a subscriber to a service provider prior to the termination of a business relationship for the receipt of direct marketing calls on his/her line will be presumed to be expired on the termination of the business relationship unless the consent was given on the clear and specific understanding that it would continue to apply in the event of the termination of the business relationship. In the case of these former subscribers, in respect of direct marketing calls, the NDD opt-out preference (if expressed) must be respected by their former service provider with immediate effect on the termination of the business relationship. 


Office of the Data Protection Commissioner
11 April 2007

"NOTE: S.I. No. 535 of 2003 - European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 has been replaced by S.I. 336 of 2011 - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 since 1 July 2011. The position outlined in this guidance note remains unchanged."