Is asking for a consent for telemarketing during a phone conversation a form of telemarketing in itself? Polish law requires prior consent for any telemarketing – whether it is targeted at consumers or entrepreneurs alike. A recent Warsaw court ruling argues that simply asking for consent should not be treated as a form of telemarketing, however the conversation involving a question itself must be free of any marketing and the consent granted cannot be immediately followed by the marketing.
The up to date practice of Polish authorities was aimed at providing consumers maximum protection against unwanted calls. Polish Competition and Consumer Protection Authority (“CCPA”) stated in its previous decisions that the consent for direct marketing operated by means of electronic devices (i.e. telemarketing) has to be given prior to any actual contact involving use of such a device (i.e. telephone call). In practice this means that you can’t gather consents for telemarketing during a phone conversation with the customer. The consent must be granted preceding the conversation and use of the telephone. CCPA argues that the act of collecting the consent – asking the question whether the customer agrees to receiving direct marketing – is a form of marketing in itself, because its ultimate goal is to make sales, advertise and conduct business.
Following the CCPA interpretation, it would be contrary to the law to simply contact someone by phone with the aim of conducting direct marketing and only during the conversation attempt to gather his consent for telemarketing.
The recent judgment of Warsaw court states that “direct marketing” should be understood narrowly as any actions which directly leads to the customer making a decision on purchase of goods / services or any actions which increase brand recognition. Therefore, asking for a consent for telemarketing in itself does not fall within the scope of this definition, as it does not lead to any sales at the moment of the conversation. The court argued that the relevant law does not prohibit any and all contact with the customer, but only the contact with the aim of conducting direct marketing. Therefore, the restriction shouldn’t be interpreted broadly to mean any contact related to any form of marketing.
Following the Warsaw court interpretation, the law permits the following scenario – during the first call the telemarketer is allowed to simply ask whether the customer gives his consent for future telemarketing. The conversation would have to end after the customer gives or refuses consent, because the consent has to be granted prior to the actual call, when actual marketing happens. Then, in the future, the telemarketer could contact the customer again in order to present the marketing itself. Therefore at least two calls are required.
The court ruling, while giving an interesting standpoint on the issue, does not form in Poland a biding precedent. It also applies to a very narrow case, where the contact with the customer is limited to a “pure” question on the consent for further telemarketing. CCPA decisions in similar cases show, that in telemarketing practice it is very difficult (or even impossible) for the telemarketer to gather consents without smuggling in a bit of marketing. Since telemarketers are often incentivized for the number of sales made, they often steer away from the set script and ask for consent in a manner which sounds appealing to the customer (e.g. “Can I present you our generous offer, which we tailored specifically to your needs?”). Such questions are likely to be considered as direct marketing, and therefore are contrary to the relevant law.
Further developments and amendments to the law are expected – a new law has recently been adopted which will introduce the General Data Protection Regulation standards to the consents for telemarketing. At this moment, despite the discussed court ruling, asking for telemarketing consent during a phone conversation still triggers certain risk for a telemarketer.