ACM issues warning: telemarketers must be able to demonstrate explicit consent

The Netherlands Authority for Consumers and Markets (ACM) has issued a warning to the telemarketing industry: under new and stricter rules, the burden of proof has increased for telemarketers to demonstrate they have obtained consent from consumers for making unwanted calls to them. Telemarketers thus need to prove that the individuals they are calling have explicitly given consent to receiving those calls. That consent must be verifiable, and it should be possible to link that consent to the individual that is being called. Some telemarketers believe that a description of their methods or a call list are sufficient for demonstrating the required consent. That is not the case. 

People that are called have the opportunity to invoke their right to object. If they do so, businesses are no longer allowed to call those individuals, and must remove these individuals’ details from their call lists and databases. ACM sees that businesses are very slow with removing those individuals from their call lists. Over the next few months, ACM will take enforcement action. ACM has made that announcement at a conference that the Dutch association for data-driven marketing, sales and service (DDMA) organized. 

Edwin van Houten, Director of ACM’s Consumer Department, explains: “We have noticed that companies, including telemarketing companies, still are not sufficiently able to prove that they have obtained consent from individuals to make calls to them. That is why we are sending this clear signal: we only accept consent that is specific, personal, and clearly registered, and that can be linked to the individual that is being called.”

In what situations can businesses make calls?

On July 1, 2021, new statutory rules for the telemarketing industry went into effect. Those rules stipulate under what conditions businesses are allowed to call individuals with the intention to sell something. Businesses can only call individuals that have given in advance their consent to receiving such calls, individuals that are customers, or individuals that had been customers until recently. ACM enforces compliance with these rules, and has the power to impose fines. 

Businesses that make the calls must demonstrate that the individual that is being called: 

• Has given their consent to receiving that phone call, or;
• Is a customer with that business for the same type or product or service, or had been a customer until recently. Businesses are allowed to call former customers up to three years after the relationship ended.

What are your options if you are called anyway?

During any phone call, you can always invoke your ‘right to object’. It is sufficient to say the following: “Please don’t call me again.” All businesses must actively offer this right in each and every phone call. In that way, those that are called stay in control over the phone calls they receive from businesses.

ACM enforces the new rules

ACM is charged with enforcement of compliance with the new rules. ACM has the power to impose fines if businesses do not comply with the rules. One element of these new rules is that businesses that make calls must be able to demonstrate to ACM that they were allowed to call, and that they offered the right to object. ACM sets requirements for the way in which businesses are able to demonstrate that consent. 
 

Consumers can file reports about unsolicited phone calls with ACM ConsuWijzer. 

See also

•    Telemarketing rules (in Dutch)
•    Are other companies allowed to call me to sell me products or services? (in Dutch)