Cold calling: what is allowed

Telephone marketing is the most heavily restricted direct channel, because it is the most intrusive.

Consumers

Unsolicited marketing calls to consumers require prior express consent in most European jurisdictions. The consent must be specific to telephone contact and to the party making the call.

What does not constitute valid consent: a clause in general terms and conditions; a pre-ticked box; consent given to a different company; consent bundled with something else; and consent obtained in a prize draw where the marketing purpose was not prominent.

Documentation

The caller must be able to demonstrate consent for the specific number called. In practice that means holding, per record: when, how, what was shown, and evidence of the individual's action.

Where a third party supplied the data, you need their documentation, and it must be adequate. Buying data with an assurance of consent is not a defence if the consent turns out to be invalid.

Business calls

Business-to-business calling is treated more permissively in several jurisdictions, on the basis of a presumed interest in the offer.

That presumption is assessed objectively and is narrower than commonly assumed. It generally requires a concrete connection between the offer and the recipient's business activity, judged from the recipient's perspective rather than the caller's.

Calling every business in a directory to offer a general service does not meet it.

The mandatory disclosures

Where calls are permitted, requirements typically include: not withholding the calling number, identifying the caller and the company at the start, stating the commercial purpose, and honouring an objection immediately and permanently.

Recording calls requires the consent of the person called, separately from any marketing consent.

Contracts concluded by telephone

Several jurisdictions require certain contracts concluded by telephone to be confirmed in a durable medium and accepted in text form before they take effect. Energy supply and telecommunications contracts are commonly covered.

Where that applies, a verbal agreement alone does not create a contract.

The suppression obligation

Objections must be recorded and applied permanently, across every campaign and every agency acting for you.

Where calling is outsourced, you remain responsible. The contract should require the agency to apply your suppression list and to provide call records.

The enforcement position

Regulators in several jurisdictions impose substantial penalties for unlawful calling, and competitor and association challenges are common.

For most businesses the practical conclusion is straightforward: do not cold-call consumers, and for business calling, be able to explain the specific connection between your offer and that recipient.