How to comply with the telemarketing rules

The amendment to the Dutch Telecommunications Act came as no surprise. The number of complaints about unsolicited sales calls from telemarketers has risen sharply in recent years. This is according to research by the Netherlands Authority for Consumers & Markets (ACM). For instance, ACM received thousands of complaints just before the new law went live.

“Even after the law was changed in July 2021, we have seen a temporary ïncrease in the number of complaints,” says ACM spokesperson Gerrie Spaansen. “Presumably this is due to increased public awareness. ACM ran an awareness campaign at the time and there was a lot of media coverage. In autumn 2021, the number of alerts fell below the level before the law was changed. During 2022, the number of complaints remained relatively low. It cannot be said to what extent this is a direct result of the law change.” .

The Netherlands Chamber of Commerce KVK is also aware of the criticism. In 2020, we received about 5,000 phone calls regarding this topic.

New telemarketing sales rules

If you sell a product or service by telephone, you have to comply with specific telemarketing sales rules. These rules have changed as of 1 July 2021.

We have summarised the 5 most important points of the legislative change below.

1. From opt-out to opt-in

Up to 1 July 2021, telemarketers used an opt-out system. ‘Opt-out’ means that prospective and existing customers are automatically included in a call list, and can only unsubscribe or have their name removed from the list afterwards. So, with this system, you are allowed to approach any natural person (consumer, sole proprietorship, or general, limited, or professional partnership) with an unsolicited call.

With the opt-in system, on the other hand, a natural person has to take active steps to be placed on a call list. Furthermore, a telemarketer must be able to prove that the natural person knowingly and voluntarily gave permission to be called.

With this change in law, the opt-in system is now replacing the opt-out system. Telemarketing businesses and organisations are no longer allowed to call natural persons without their permission. Telemarking for commercial, charitable, and non-commercial purposes is still allowed, but only if a natural person has given prior permission, or if a customer relationship already exists. That customer relationship may not go back longer than 3 years ago.

2. Do-not-call-me register is discontinued

The Do-not-call-me register has been terminated. Under the previous telemarketing legislation, a natural person could use this register to record their preference not to receive calls. This is no longer necessary.

3. Anonymous calling banned

You are no longer allowed to make calls without caller ID. Your phone number has to be visible at all times and your customers must be able to call that number back for free or at regular calling rates. If you do call anonymously (without caller ID), your customer’s phone provider must cooperate in retrieving your data, if they are requested to do so.

4. Limitation on customer term

At the moment, telemarketing to existing customers is limited to a maximum term of 3 years. You are allowed to contact your customer during that period. This is recorded in the Telemarketing Code (in Dutch). This period can also be shortened with a General Administrative Order (AMvB) from the government.

After 1 July 2021, the start of a customer term is still regulated by the Telemarketing Code. This means that the customer term begins at the end of a service, donorship, or after the last purchase of a product. Even though your customer is, at that point, officially no longer a customer, you are allowed to approach them for a maximum period of 3 years.

5. Customer relationship requirements and definition

The requirements for establishing a customer relationship in telemarketing sales are now in line with the requirements for email marketing. In email marketing, the opt-out system was already in place through the unsubscribe option. So now, when you ask someone for their phone number, you must also give them the option to unsubscribe from future calls at the same time.

For charities, the definition of a customer relationship has been expanded. A customer relationship can, for example, begin with a person who did volunteer work or who attended a demonstration. It is yet unknown how broad this definition is going to be.

Prove permission

In accordance with the privacy legislation, you must have been given explicit permission to place someone on a call list. According to Van Doodewaerd, this means that you can never force a consumer to consent to be placed on a call list. “The customer must understand what exactly they are agreeing to when you call them. Therefore, it is up to the telemarketer to clearly state who they are, and why they are calling. The customer’s consent must never be implied or assumed. The customer must give their consent through an affirmative action. For example, by ticking a consent checkbox, as is common in emails.” So, you are not allowed to have pre-ticked consent checkboxes; the customer must tick the checkbox themselves.

In doing so, according to ACM, you may not combine consent for email and telephone. So if your customer signs up for the newsletter, you may email, but not call. That requires separate consent.

Furthermore, it is important that you, the entrepreneur, can prove your ‘innocence’ if requested. “The law provides for a so-called reversed burden of proof. This means that when somebody says: ‘I did not give permission’, the organisation has to prove to the regulator that they did get permission to call the customer. The regulator does not have to prove you are guilty, you have to prove that you are not guilty”, according to Van Doodewaerd.

Right to object

The ‘right to object’ existed under the previous rules and has remained the same. At any moment during a telesales call, the natural person can use this right. If they clearly indicate that they no longer want to be called (without giving reasons), a telesales company has to comply and delete all of the customer’s data from all their call lists. If the customer still gets calls after this, they can file a complaint (in Dutch) with the ACM.

Improve customer relationship

Van Doodewaerd expects that the new law will get great media attention, which is why she believes solid preparation is important. “You must realise that telesales are in the spotlight. Does your customer understand that you are allowed to call them, even without permission, if there is a customer relationship? And do you know how to have a friendly conversation with the frustrated consumer who says they have not given permission? Prepare your salespeople. Formulate frequently asked questions that you can rehearse, for instance. This way, you will be professional, friendly, and patient when talking to your customers.”

ACM advises consumers to say ‘no’ (in Dutch) and disconnect if they do not trust a call. “Do not let them send you ‘additional information’. This way, you avoid being confronted with false demands for payments.” Van Doodewaerd agrees, but also wants to point out that telemarketing is not all bad. “A good telephone conversation with a consumer can help them when dealing with complex products. It can also create a momentum for donations to charities. In other words, telesales can be greatly beneficial to both parties. I do hope that this law will contribute to this beneficial effect.”

Strict enforcement

Sector organisation DDMA hopes that the change in the law will remove the frustration felt by consumers and calls on ACM for stricter enforcement. “We believe that the success of the change in the law depends entirely on how it is regulated. It is now up to ACM to enforce the new rules and up to entrepreneurs to adjust their practices and comply with the Telemarketing Code”, says Romar van der Leij, legal counsel at DDMA.