• by Sean Hargrave , Staff Writer, February 25, 2015

I remember the news breaking while I was reporting on a mobile marketing conference a year or so ago that an infamous personal injury text "marketing" company had been given a six-figure fine, When the news was read out, it led to the biggest cheer I have ever heard at a conference.

So today's announcement that new tighter rules on cold-calling abuses will begin on April 6th will be welcomed by all reasonable marketers. Rather than prove a person has suffered greatly in receiving an unsolicited call against their permission, complainants will now only have to show that they have been annoyed by disruptions in their dinner or Coronation Street. The maximum fine will give a lot of companies food for thought too -- GBP500k sounds like a pretty good deterrent to me, at least on the surface.

Cold-calling telemarketing companies only have themselves to blame. Sure, there are reputable companies out there, but there are a lot of rogues -- or at least companies that do not follow the rules or train staff how to follow the rules. 

The crazy thing is that the law has been very relaxed for marketers. There in no explicit consent required to receive a call. The law only states that marketers cannot calls someone who has explicitly asked not to be called. Rather unhelpfully, Ofcom suggests people write to the company that has called them against their wishes to tell them they do not wish to receive calls. You can imagine how many rogue operators give out their address when questioned by an angry resident -- and while you're thinking about that, consider how many actually tell you which company they are calling from.

The only protection for consumers is the Telephone Preference Service. Sign up and the theory is that anyone making telesales calls should not dial your number unless you have explicitly opted-in to receive calls from that organisation. I've signed up and it mostly works, but I know plenty of people who have done the same and have had to abandon answering their phone in the evening because nearly all calls come from telesales outfits. 

In short, the marketing industry won a tremendous victory in getting telesales permitted on an opt-out basis and it has abused it. There are tighter opt-in rules on text-message marketing, so consumers have to consent to receiving message, but even so, rogue operators have abused the system. The industry also won a huge victory in the bar being raised so high in terms of the level of distress a consumer had to prove before a company could be fined. The rules were incredibly leni but now they have to be adapted slightly in favour of consumers.

The trouble is, I can only see these new rules having a small effect. Ask yourself this. When was the last time a telesales company making cold calls agreed to repeat the firm's name, the name of the caller, their telephone number and their address. They simply hang up when questioned. There is no trace on them because they purposefully use telephone lines that flash up as "no caller ID" or "unknown" on your telephone handset. So there's no way of knowing who they are and there's no way of barring them on your smartphone if you have call barring software downloaded.

If a company were identified, you can imagine it will take a lot of time for them to assure the regulator that the incidents are isolated cases and that they will improve training. An eventual fine might be small enough, in the first instance, to swallow -- but I think we all know what will happen to any company that gets a GBP500k fine. British company law is so flexible they will be allowed to change their company name and dodge the fine. The law is so lacklustre that they would feasibly get away with changing their name in law only. They could continue using the same brand name so to the outside world nothing would have changed but there would be an extra word added in the small print as the bottom of their printed stationery and on their certificate to prove they are a registered limited company.

It was encouraging to hear Ed Vaizey, the Digital Economy Minster, say that the Government is considering holding directors of rogue companies accountable and fining them. Quite why this is not already the case is anyone's guess, as is why they are allowed to withhold their numbers while making unsolicited calls.

Trust me -- the only way you're going to stop this is by fining and pursuing the rogues themselves, not the companies they can currently hide behind.