Author: Yingying Zhu, Partner at BEIJING MINGDUN LAW FIRM
Email: zhu.yingying@mdlaw.cn
Date: August 24, 2022
Introduction
Each of us is being bombarded by unsolicited calls on a daily basis, if not hourly. Most of these calls were from people in legitimate businesses who wanted to tele-market something, for example, houses, training courses, bank loans, etc., and some were from frauds or scammers who wanted to set people up through scam calls. Even after the effectiveness of the Personal Information Protection Law of the People’s Republic of China (the “PIPL”)[1] since November 1st, 2021, people still see no end in sight of getting these unwanted calls, which are increasingly driving people crazy.
One cannot help wondering: is there a solution available? This article is mainly discussing how other countries are dealing with this nuisance and how we can learn from it.
“Stones from Other Hills”
There is an old Chinese proverb that says, 'Jade can be polished by stones from other hills.' We can learn from the experience of other countries in crafting a solution for unwanted telemarketing calls. As demonstrated in the below, most countries are dealing with the problem by adopting a national do-not-call list or do-not-call registry which is a list of personal phone numbers that are off-limits to telemarketers.[2]
1. The UK
In the UK, the Telephone Preference Service (TPS) is the country’s official ‘Do Not Call’ register for landlines and mobile numbers. It allows people and businesses to opt out of unsolicited live sales and marketing calls.
It’s free and quick to register a telephone number. Doing so will reduce the amount of unwanted sales and marketing calls people receive. There is also a register for businesses, the Corporate Telephone Preference Service (CTPS).
If a number is registered with the TPS/CTPS, organizations are legally required – by the Privacy and Electronic (EC Directive) Regulations 2003 – to refrain from calling it. In the UK, the Information Commissioner’s Office enforces the law and has power to fine firms that break it.
Organizations are required to screen against TPS/CTPS at least once every 28 days.[3]
2. France
In France, it is called Bloctel: the list of opposition to telephone marketing, established by the Law on Consumption of March 17, 2014. Before soliciting a consumer by telephone, businesses will have to ensure that the consumer is not registered on the opposition list. The Bloctel is a major step forward for all those who can no longer stand to be constantly solicited by unwanted calls. Businesses who do not comply with the regulations will incur a fine of up to €375,000 (€75,000 for a natural person). [4]
3. The USA
In the USA, the National Do Not Call Registry gives people a choice about whether to receive telemarketing calls.
People can register their home or mobile phone for free at the National Do Not Call Registry. After people register, other types of organizations may still call you, such as charities, political groups, debt collectors and surveys. If people received an unwanted call after their number was on the National Registry for 31 days, they can report it to the Federal Trade Commission, who will then investigate the case and impose a punishment on the caller.[5]
4. Australia
In Australia, the Do Not Call Register is a secure database where individuals and organizations can register, check or remove their Australian telephone, mobile and fax numbers to opt out of receiving most unsolicited telemarketing calls and faxes. Registration is free and people only need to do it once. Once registered, a number will stay on the register indefinitely unless the number owner or their representative removes the number. Telemarketers and fax marketers have 30 days to recognize the registration of a number and to stop contacting that number.
The Australian Media and Communications Authority (the ACMA) manages the register, including responding to breaches of the legislation.[6]
5. India
In India, the National Customer Preference Register (NCPR), formerly the National Do Not Call Registry (NDNC), is intended to give Indian consumers an opportunity to limit the telemarketing calls they receive. Every mobile service provider in India is required to set up a National Customer Preference Register (NCPR). In practice, various service providers refer to it as the Do Not Disturb (DND) registry. Consumer can block all commercial communications or can selectively block unsolicited commercial communications from some specified categories by registering his/her preference in NCPR.[7]
6. Singapore
In Singapore, consumers who do not wish to receive telemarketing messages via phone call, SMS or fax, can register their Singapore telephone numbers with the Do Not Call (DNC) Registry. This applies to home, office and mobile numbers. Registration is free and does not expire.
This allows people to have more control over the kind of messages they receive on their telephone, mobile telephone, or fax machine. People can withdraw their consent at any time even after consenting to receiving marketing messages.[8]
How can we deal with the problem?
The answer is obvious and should be shouted out loud from all of us who are deeply plagued by telemarketing calls-We should have our own National Do Not Call (DNC) Registry established! It will be a database for individuals to register their number to avoid the unwelcome and unwanted telemarketing calls. With reference to the practices of the above-mentioned countries, the below are some legal and practical considerations for a fantasized China National DNC Registry.
1. Advantages
A well-planned and properly regulated National DNC Registry could benefit all the parties involved, including the general public, the telemarketers, the telephone service providers, as well as the market regulator.
For the general public, there were statistics suggesting that after the adoption of a national DNC Registry, phone owners who registered have experienced a significant reduction in nuisance marketing calls. For example, an earlier US survey, conducted less than a year after the DNC Registry was implemented, found that people who registered saw a reduction in telemarketing calls from an average of 30 calls per month to an average of 6 per month.[9] In Singapore, 70% of consumers reported fewer unwanted calls within a couple of months of the start of their new register.[10]
As far as the telemarketers are concerned, they should be happy too because the adoption of a national DNC Registry would help them to wash or purify their calling lists and therefore increase the chances of people answering their telemarketing calls. By washing or purifying their calling lists, it would take the telemarketers one step closer to their target consumers, hence a win-win situation on both sides-the consumers and the telemarketers.
With respect to the telephone service providers, i.e., the telecom, the effectiveness of a national DNC Registry in blocking “unwanted calls” would make people feel safer to pick up their phones to answer the “wanted calls”. This would help to improve the services provided by the telecom and make themselves more welcomed and trusted by the consumers.
As to the market regulator, needless to say, by adopting a policy that would be widely popular with the general public, it would increase market efficiency and add credits to the administrative performances of the market regulator. In addition, to identify registered numbers, telemarketers would be required to check their calling lists against the register, the access to which would entail payment of fees. Furthermore, fines would be levied against those rule breakers. The collection of the aforesaid fees and fines could be utilized for the maintenance of the national DNC Registry. If well-planned and properly regulated, the DNC Registry could be economically beneficial to the market regulator as well.
2. Who can register?
The DNC Registry should accept registration of all China telephone numbers, including mobile, home and office numbers. Proof of access to the device of the number that is being registered should be required.
3. Is the Registration free?
Yes, it definitely should be free to all the individuals and businesses who wish to register.
4. How does the DNC Registry work?
Businesses must check with the DNC Registry to ensure that the Chinese telephone numbers that they are making telemarketing calls with are not listed in the Registry. Those who break the rules should face penalties.
5. How about Scam Calls?
As most scam callers are located beyond Chinese borders and almost impossible to catch, the DNC Registry may not prove to be efficient in blocking scam calls.
6. Privacy and Data Collection
The DNC Registry should only collect or process personal information if it is reasonably necessary for the performance of one or more of the DNC Registry’s functions or activities. For example, data should only be collected or processed for:
1) verifying the individual’s identity for the qualification to be placed on or have access to the DNC registry;
2) registering, checking and removing phone numbers on or from the DNC registry;
3) permitting the enforcement agency to identify and reach out to the individual whenever necessary to respond to an enquiry or to process a complaint; and
4) other functions or activities permitted by law.
Conclusion
Receiving telemarketing “cold calls” can be time-consuming, and incredibly annoying. Although the disturbance from each call may be trivial, the aggregate harm is found to be quite unbearable to the most.
A National Do-Not-Call Registry would give consumers an opt-out option about whether to receive telemarketing calls. It has proven to be working fairly well in the major economics around the world. It is high time for China to consider implementing a similar platform to effectively tackle the problem.
[1]On November 1st, 2021, China’s first comprehensive data privacy law, the Personal Information Protection Law of the People’s Republic of China (the “PIPL”), has become effective. The PIPL basically requires that the operators of websites, mobile phone applications or any other technologies doing data collection and processing should obtain consent from users or have other legitimate basis in order to collect/process the users’ data.
[2] See https://en.wikipedia.org/wiki/Do_not_call_list.
[3] See https://www.tpsonline.org.uk/pages/what_is_tps.
[4] See https://www.economie.gouv.fr/dgccrf/bloctel-service-gratuit-pour-se-proteger-demarchage-telephonique-abusif.
[5] See https://www.donotcall.gov/report.html.
[6] See https://www.donotcall.gov.au/about/about-the-do-not-call-register.
[7] See https://www.trai.gov.in/faqcategory/unsolicited-commercial-communicationsucc.
[8] See https://www.dnc.gov.sg/index.html.
[9] See Box 9-1: The Do Not Call List, in chapter 9: Economic Regulation of Economic Report of the President (2009), http://www.gpo.gov/fdsys/pkg/ERP-2009/pdf/ERP-2009-chapter9.pdf.
[10] See https://www.pdpc.gov.sg/individuals/do-not-call-registry-you.