At least once per week each of us is faced with a call from a completely unsolicited call. We just sit down for dinner, or to watch our favourite T.V show and we receive a call from someone wanting to sell us something. The most common call is PPI but there is an increasing number regarding home improvements. The Information Commissioner received 175,000 complaints about cold calling last year. More staggering is that, according to the consumer rights group WHICH, only 2% of people make a complaint. Fortunately the government has now made it easier to impose punishments on those companies who continue to intrude on our precious private time.
Prior to 6th April 2015 the information commissioner had to be able to prove a call caused “substantial damage or substantial distress in order to intervene.” That is no longer required.
If you add your name to the telephone preference service then you are indicating that you don’t want to receive marketing calls. Companies must be given explicit consent for that named company to call in order to override the telephone preference service. If they have not been then it is unlawful for them to call you. If you are registered and receive a call you should complain to the Information Commissioners officer. Under the new rules the ICO can impose a civil fine of up to £500,000.
Will the new ICO’s powers go far enough? We hope that the new rules will allow the ICO to use the law as a shield to protect people, particularly vulnerable people, from nuisance calls. However, does that go far enough? Should there be compensation available for those who have been plagued by these calls, particularly where it is by the same company who have been repeatedly told that the caller does not wish to be contacted.
The Protection from Harassment Act 1997 gives individuals the right to be free from harassment. Harassment includes speech. The test is whether the act/speech occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person. This is difficult to prove. There would require to be evidence of constant calls by the same company throughout a significant period in order to constitute harassment. In those circumstances the court can award damages for the anxiety caused as well as any financial losses. The cases to which the act applies will be extreme. The delictual remedy is therefore ineffective. But what about a contractual route?
We recently heard of Mr Herman who upon answering a nuisance call advised the company that if they called again he would charge them £10 per minute for his time. When they called again and kept him on the line for 19 minutes he sent them an invoice for over £190. He had recorded the call. After the company failed to pay he raised a small claims action against them and the company swiftly settled matters for £195 plus court fees.
We wholeheartedly applaud Mr Herman. He used the law to redress the power balance between a big company and an individual. This is an excellent use of the law used as a sword. Hopefully with the new rules this will not be required. In this arena the law should be used as a shield to prevent the nuisance calls in the first place and if the ICO wields that shield effectively perhaps we can all enjoy EastEnders in peace.
