Saturday, 10 July 2010

Junk calls and legality

Having been on the register and slashdot I see interesting comments, including a few questioning the legality of what I am doing to wind up the junk callers. I appreciate the concern people are showing and I think we are OK...

Just to start, it is very clear that the callers are breaking the law. Marketing calls to TPS listed numbers is illegal as are marketing calls using auto-diallers that have recorded message rather than live voice. So illegal on two counts. They also typically refuse to properly identify themselves which is (I believe) breach of Companies Act.

The law is not that daft. For a start, it is EU wide, which covers a lot of off-shore call centres. But the law covers the party instigating the call as well as the party making the call and the party allowing their "line" to be used to make the call. So even if it is an off-shore marketing company making calls, the UK company contracting them (or maybe even just encouraging them by offering commission) is liable. These calls are all UK specific covering: UK cheap calls, UK legislation on debt relief, and UK legislation covering mis-sold insurance. So UK companies are involved. UK companies are committing an offense. It is not 100% clear to me if the individual call centre staff (if in UK) are breaking the law, but I would hope so. After all, if you are employed to break in to someone's house that does not mean it is not you breaking the law.

Unfortunately, just because they are criminals does not quite mean we can do what we like.

1. Can we record the calls? The law used to be pretty simple - if one party knew the call was recorded then that was OK. It is more complex now, but from various guidance I have read a company can record calls for various reasons (including detecting and preventing crime) and an individual can record their calls anyway.

2. Do we need consent to record calls. I don't believe so - we are entitled to record the call. Various guidance suggests we should state the call is recorded at the start, which we do (their choice not to listen to that). Whilst their recording cannot give "consent" to be recorded we don't actually need consent as far as I am aware. We also publicly state on our web site that such calls are recorded.

Bear in mind that if recording the call is a problem some how, we can play them at their game, routing the call to some other country and recording it where there is no law against it. Isn't voice over IP magic :-)

3. Can we publish the recording? Well it is our copyright as we made it. But there are data protection implications, maybe. The DPA only applies to personal data, which means the data (call recording) relates to an identifiable living individual. I, as data controller, cannot identify the individual and think it very unlikely I ever will. As such, I am pretty sure they are not DPA material (well, apart from my voice in the call, and I give my consent to publication). Now, if someone can identify the individual and cares to impart that information to me as data controller then maybe the call recording becomes personal data at that point. If that happens I will, of course, comply with the Act and (if they ask) remove the recording from the web site. I will, of course sue them for civil damages for their criminal act and report them to the authorities and also try to get a court order requiring them to disclose their employer details. So please, someone complain about the recording and provide details that allow me to identify the individual :-)

4. Can we wind them up and waste their time? I don't think that is against any law. They control the time they choose to spend on the call, not us, anyway.

5. Can we TPS register our new number blocks? I am happy for the company to assign 4 million numbers to be as an individual subscriber if necessary (and for me to hand back as the company "sells" them to other subscribers). That would allow them all to be TPS registered legitimately.

If anyone thinks any law makes what I am doing illegal or even a civil wrong in some way, please do let me know (and cite references). If there is anything wrong we can probably work around it.

So, thanks all for your concern.

15 comments:

  1. When I got these junk calls, I used to put them on hold, dial the local pizza shop, merge the calls into a 3-way conversation, cover up my mic and just listen in. You'd be surprised at how enjoyable it can be. Right up until the pizza shop blocked my number...

    I know nothing of the UK phone system, but I wonder, can you put phone numbers on the do-not-call lists which are those elevated cost rates? I also have no idea if these junk callers are able to call them, but if you could tie them up on a number that's $14.95 a minute, I'm sure that'd make turn them broke pretty quick...

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  2. From /.:

    1. Find two telemarketers who call you at (roughly) the same time.

    2. Put them on the phone with each other.

    3. ???

    4. Hilarity ensues.

    ...would make an interesting extension to the current setup. ;-)

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  3. If you can find an excuse to put them on hold with music, can I suggest the first song you play to them is "Never gonna give you up" by a certain Rick Astley?

    They might get wise but it'll be funny...

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  4. This might be relevant to the issue of publication of recordings.

    Hackney council apparently attempted to C&D a local newspaper that published a recording of a call with one of their staff, using data protection legislation as their support; seems like that doesn't really work:

    http://jackofkent.blogspot.com/2010/07/improper-and-disgraceful-conduct-of.html

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  5. Most epic thing I've seen in a while!
    Keep up the good work.

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  6. IANAL but if an employee conspires with their employer to facilitate an offence on their behalf then that's a statutory conspiracy offence (see Criminal Law Act 1977 Section 1(1)).

    If a barrister could argue that someone applying for a job at one of these outfits knew what they were doing was illegal then just the act of offering to work there would be an offence.

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  7. Ok just to add a few more wasted seconds to each call of theirs, record the ringing tone of the phone, and stick a couple of extra rings at the start of the reply,

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  8. you can always start forwarding calls after the "introduction".

    imho http://www.the-dma.org looks a nice target

    quote:
    Each dollar spent on direct marketing yields, on average, a return on investment of $11.73, versus ROI of $5.23 from non-direct marketing expenditures. That's the Power of Direct.
    From DMA's The Power of Direct Marketing: ROI, Sales, Expenditures and Employment in the US, 2009-2010 Edition.


    at least they will be harassed by their own people, perhaps you can get a recording "please stop calling the-dma!"

    For more information about DMA or its subsidiaries, call 212.768.7277 or e-mail us at membership@the-dma.org

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  9. Can you detect when a call has been placed on hold and find some kind of audio-pattern that resists compression and so maximizes throughput? So that when they try to DOS you?

    I believe it's only when they put you on hold and your recording ends that it costs them nothing...

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  10. Putting us on hold should not stop them paying. The inbound revenue from the call that the carrier gets will be more than the cost of a channel, so the more calls on hold the more the carrier gets. Eventually we should get some of that revenue too.

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  11. I believe that it is not only the DPA which has to be satisfied (and IMHO you are doing that), but also the RIPA (Regulation of Investigative Powers Act) covers 'intercepting' of communications which I believe (wrongly in my opinion) recording telephone calls to which you are a party. Though, on the other hand, what you are doing is in effect nothing more than an answering machine except that it does not remain silent (as they normally do) during the recording phase.

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  12. Bear in mind someone who breaks the law is not necessarily a criminal. The offence has to be a criminal offence AND they have to be convicted by a court.
    As to the right to publish, copyright exists in both the recording and the performance so creation of the recording is probably technically not sufficient to publish. They may still claim right to their side of the 'performance' unless they have somehow waived that right, for example by performing it in public.
    I am not a lawyer!

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  13. In order for the performer to dispute the right of publication, they would have to identify themselves as the particular performer with the rights thereto, consequently revealing their identity as a law breaking performer.

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  14. Great article, thank you for sharing this.
    call recording

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  15. "Can we wind them up and waste their time? I don't think that is against any law. They control the time they choose to spend on the call, not us, anyway." I agree and suggest to play the game called "Tormenting the Telemarketer": http://blog.tellows.com/2012/02/how-to-drive-the-telemarketer-up-the-wall/

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