ISDN - the Telecoms Data Protection Directive

Confidentiality of telecommunications

Article 5 of the Directive states:

"1.Member States shall ensure via national regulations the confidentiality of communications by means of public telecommunications network and publicly available telecommunications services. In particular they shall prohibit listening, taping, storage or other kinds of interception or surveillance of communications, by others than users, without the consent of the users concerned, except when legally authorised...(by measures relating to national security, defence etc).

2.Paragraph 1 shall not affect any legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication."

Companies which currently routinely tape telephone conversations will have to check that the reason which they do so falls within the exception contained in Part 2 of Article 5.

For example, banks which tape conversations with their customers in case there is any dispute over the terms of a transaction may be covered by the exemption, because the recording will be "for the purposes of providing evidence of a commercial transaction".

However, the taping or monitoring of communications for the purpose of training staff, or monitoring their activities, might not be covered by the exemption because, depending on the eventual interpretation of section 2, it can perhaps be argued that the recordings are not done for the purpose of providing evidence of either a commercial transaction or any other business communication. The responsibility for the implementation of this directive in the UK rests with the DTI, and they will be issuing a Consultation Document later in 1998 which may shed some light on how they will interpret this loosely worded section.

Unsolicited calls

Article 12 of the ISDN Directive reads:

"1.The use of automated calling systems without human intervention (automatic calling machine) or facsimile machines (fax) for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

2.Member States shall take appropriate measures to ensure that, free of charge, unsolicited calls for the purposes of direct marketing, by means other than those referred to in paragraph 1, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these calls, the choice between these options to be determined by national legislation."

This article will require the replacement of the current (voluntary) telephone preference scheme with some form of statutory scheme which will have to operate on an inclusive, rather than exclusive basis. It is not yet clear how the DTI will implement this proposal, but it must be presumed that telephone and fax cold calling will be prohibited without specific consent. Firms which rely on this technique to do the majority of their marketing will have to re-evaluate the extent to which this style of cold calling remains realistic.

It is also unclear which particular marketing methods paragraph 2 of this article is aimed at. However, 2 above will prevent using other cold calling techniques with new technologies as they develop, although the extent to which it will prevent such use will depend upon whether the UK chooses to force marketers to get prior consent, or to allow consumers to indicate that they do not wish to be cold called, in accordance with the option set out at the end of the paragraph.