News Focus: Legal Eagle

James Milligan is legal and public affairs adviser at the Direct Marketing Association. This column is not intended to constitute legal advice. For specific legal advice, contact your solicitor. For DMA membership details, contact Sean Moore on 020 7291 3334.

Q: With the increasing amount of telephone numbers registered on both the Telephone Preference Service (TPS) and the Corporate TPS, I'm wondering whether or not I will be able to contact my existing customers.

A: The good news is that you can contact your own list of contacts (people with whom you have an existing relationship) without screening against the TPS file - under certain conditions.

First, the individual must have provided their telephone number directly to you. This means that you cannot source the number from, for example, the BT OSIS file.

You must also make it clear that their number may be used for marketing.

This means that the opt-out statement should include something along the following lines: "We would like to use the information on this form (including your telephone number) to contact you with information about our products and services, which we think you may be interested in".

However, you cannot pass the telephone numbers on to other companies within your group and selected third parties, unless you specify the names of the other group companies and selected third parties in the opt-out statement.

Alternatively, the company which originally collected the data could carry out a telemarketing exercise on behalf of the other group companies and selected third parties. The opt-out statement would have to make reference to the telemarketing campaign.

Q: I'm involved in financial services direct marketing. How will the Distance Marketing of Consumer Financial Services Directive (DMD) affect my activities?

A: The DMD applies to any contracts between a financial services company and a consumer, using one or more means of distance communication, including telephone, internet, fax or direct mail. The Directive requires you to supply the consumer with information about the financial services provider and about the contract.

This last category includes information on the cancellation period for consumers - 14 days starting from the day after the date the contract was concluded. For pension contracts the cancellation period is 30 days starting from the day after the date the contract was concluded. For life insurance, the cancellation period is 30 days starting from the day after the consumer is told that the distance contract has been concluded.

The prior information requirements must be given to the consumer in a durable medium, so simply putting them on a website is not sufficient.

The consumer must be able to download the information, save it and print it off.

These requirements come into effect on 31 October 2004.

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