Cold calling is one of those selling methods that can raise the hackles of even the most laid back person and yet it is widely used by businesses both large and small – because IT WORKS.
Cold Calling in the provision of legal services
The Solicitors’ Code of Conduct prohibits solicitors from using such methods, on the basis that it is judged to be unethical and potentially harmful to the public to promote legal services in that way.
There are ten fundamental principles in the Solicitors’ Code of Conduct 2011 that solicitors must observe. These include acting with integrity and behaving in a way that maintains public trust in them and it is made clear to solicitors by their regulator, that to use cold calling on members of the public would breach those principles and be a disciplinary matter.
Cold calling – claims management services
These are the regulations regarding Claims Management Companies and are based upon the Privacy and Electronic Communications (EC Directive) Regulations 2003 are amended as follows.
(1) A person must not use or instigate the use of, a public electronic communications service to make unsolicited calls for the purposes of direct marketing in relation to claims management services except in the circumstances referred to in paragraph 2.
(2) Those circumstances are where the called line is that of a subscriber who has previously notified the caller that for the time being the subscriber consents to such calls being made by, or at the instigation of, the caller on that line.
(3) A subscriber must not permit the subscriber’s line to be used in contravention of paragraph 1.
(4) In this regulation, “claims management services” means the following services in relation to the making of a claim—
- (a) advice.
- (b) financial services or assistance.
- (c) acting on behalf of, or representing, a person.
- (d) the referral or introduction of one person to another.
- (e) the making of inquiries.
(5) In paragraph 5, “claim” means a claim for compensation, restitution, repayment or any other remedy or relief in respect of loss or damage or in respect of an obligation, whether the claim is made or could be made—
- (a) by way of legal proceedings,
- (b) in accordance with a scheme of regulation (whether voluntary or compulsory), or
- (c) in pursuance of a voluntary undertaking.
Therefore, it is clear that Claims Managers cannot cold call and in compliance with this, TESS Law does NOT cold call anyone.
However, these days there are plenty of organisations operating in and around the field of legal services that are not regulated at all nor are they prevented from cold calling to tout for business. Consequently, calls and texts from unregulated companies and individuals offering to terminate timeshare are becoming increasingly common. Because the general public is still largely unaware of the difference between organisations who are qualified or regulated and others that are not.
Many companies engage clients by employing unsolicited approaches. In our opinion and despite it being deemed legal in many circles, it is an unwarranted invasion and an unethical practice.
Cold calling and the law
What is cold calling, and is it legal?
A cold call is an unsolicited telephone call, visit, or other communication, usually on the part of a business seeking to attract new customers.
Cold calling is not illegal per se. However, the Privacy and Electronic Communications (EC Directive) Regulations 2003 imposes restrictions on marketing via cold calls, unsolicited texts, emails, and faxes. The 2003 Regulations require companies to obtain an individual’s consent before sending marketing communications to them.
Different rules apply to different types of communication, and the rules are generally stricter for marketing to individuals than for marketing to companies. We focus here on direct marketing aimed at individuals.
When is cold calling illegal?
Use of automated calling systems.
An automated calling system automatically initiates a sequence of calls to more than one destination and transmits sounds which are not live speech, targeted at people at the other end. The 2003 Regulations prohibit the use of such automated communications for direct marketing purposes.
However, if a subscriber has given their explicit consent to a company to send them such communications, it is not illegal for the company to make automated calls to them. However, where the use of automated calling systems is permitted, the caller is required to provide their name and address, or free phone number. Their phone number must also be clearly displayed to the recipient of the call.
Use of fax machines
The 2003 Regulations prohibit a company from sending unsolicited marketing faxes to individuals, including sole traders, without their prior permission to receive marketing faxes from the company concerned. Faxes can, however, be sent to a company which has not registered its fax number with the Fax Preference Service Register. The sender of the fax must display their name and contact address or freephone number.
A company will not be treated as having contravened the regulations where the fax number has been listed on the Fax Preference Service Register for less than 28 days when the fax was sent.
Use of unsolicited calls
It is not illegal for a company to make a ‘live’ cold call for general marketing purposes, subject to the following exceptions. The 2003 Regulations prohibits the use of live cold calls where:
- The individual has made it clear they do not wish to receive such calls, or
- The recipient’s number is listed in the Telephone Preference Service register or the Corporate Telephone Preference Service Register.
A person or company will not be deemed to have contravened the Regulations where the phone number has been listed with the Telephone Preference Service Register or the Corporate Telephone Preference Service Register for less than 28 days when the call is made.
Where cold calling is legal, the caller is required to provide their name and address, or a free telephone number.
Use of unsolicited emails
The 2003 Regulations 2003 prohibits companies from sending unsolicited marketing emails to individuals except where: the recipient has provided express consent, or
The recipient is an existing customer who has previously bought (or negotiated to buy) a similar product or service, and the company provided a simple means to opt-out both when the company first collected their details and in every message it has sent.
Where it is legal, the sender is prohibited from disguising or concealing their identity; and must provide a valid address to which the recipient can request such communications must stop.
Note that these rules apply to all digital marketing, such as texts, picture messages, video messages, voicemails, and direct messages via social media. So, if you receive an unsolicited direct marketing message via social media, the company behind it has broken the law.
In addition to the 2003 Regulations, individuals can list their number with various central registers showing their wish not to receive marketing calls or faxes. The Telephone Preference Service and the Fax Preference Service were created under the Telecommunications (Data Protection and Privacy) Regulations 1999 – legislation which was replaced by the 2003 regulations. The registers are kept and maintained by OFCOM.
The Telephone Preference Service
The Telephone Preference Service (TPS) is a central opt-out register where individuals, including sole traders, can register their wish not to receive unsolicited sales and marketing telephone calls. Companies are banned from contacting telephone numbers registered with the TPS.
The Fax Preference Service
It is unlawful to send an individual an unsolicited sales and marketing fax without permission. The Fax Preference Service is a central opt-out register for businesses who can register their wish not to receive such faxes. Individuals can also register their fax number with the FPS.
The Corporate Telephone Preference Service
The Corporate Telephone Preference Service is a central opt-out register for corporate subscribers. A corporate subscriber includes UK limited companies, limited liability partnerships in England, Wales and Northern Ireland, or any partnership in Scotland, schools, government departments and agencies, hospitals, PLCs and other public bodies.
Last modified: 28th August 2020