How to make commercial calls without being penalized

[29/06/2023: the wording of this post has been modified due to the publication in the BOE (Official State Gazette) of the Circular of the AEPD]

Commercial calls made by any natural or legal person, regardless of the sector, are prohibited.

Therefore, your company cannot make commercial calls, but we tell you in this post, several exceptions that surely are of your interest.

But first let’s put everything in context, as this prohibition comes from Article 66 of Law 11/2022, of June 28, General Telecommunications, and legal issues are expanded with the publication of the Circular of the AEPD.

Rights recognized in Article 66.1 of the General Telecommunications Law

This article 66.1 regulates the data protection and privacy rights of end users of publicly available number-based interpersonal communications services in relation to unsolicited communications.

These rights consist of:

–The rightnot to receive automatic calls without human intervention or fax messages for the purpose of commercial communication without having given his or her prior consent. prior consent to do so;

–Rightnot to receive unwanted calls for commercial communication purposes, unless there is prior consent of the user himself to receive this type of commercial communications or unless the communication can be supported by another basis of legitimacy of those provided for in Article 6.1 of Regulation (EU) 2016/679 on the processing of personal data.

But it was not very clear about the commercial calls.

From the beginning, the legal provision would seem clear until we reach the conclusion that at last the inopportune calls to sell us anything are over, because if we have no previous relationship with the company that sells or provides the service, or if we have not given our consent beforehand, these practices would be in the field of illegality.

That would be a first impression after a quick reading of Article 66.1.b) of Law 11/2022.

However, attention should be paid to the last part of this paragraph b) of the aforementioned article:

“(…) or unless the communication can be covered by another basis of legitimacy provided for in Article 6(1) of Regulation (EU) 2016/679 on the processing of personal data.”

Here the picture changes radically, because within the bases of legitimacy established in Article 6.1 of the RGPD is the legitimate interestin paragraph f).

Basing any action related to data protection based on legitimate interest has not been without difficulties, as the fundamental rights and freedoms of the data subject must always be weighed against the legitimate interest of the data controller, or the processor as the case may be.

Position of the Spanish Data Protection Agency (AEPD)

This circumstance has not been overlooked by the Spanish Data Protection Agency, which, in view of the entry into force of the controversial article, which will be on June 28, 2023, according to the provisions of the sixth final provision, paragraph 2 of the aforementioned Law, has taken action on the matter.

And how did you do it?

First, it issued a Legal Report (0040/2023), in which it stated its position of interpreting Article 66.1 b) of the General Telecommunications Law in a broad sense, that is, that it was not only legitimate to make commercial calls with the prior consent of the data subject or with a prior contractual relationship, but could also be based on any of the options provided for in Article 6.1 of the GDPR, among them, the legitimate interest.

In a press release dated April 23, 2023, it informed the general public that a hearing period was beginning to gather the opinions of the interested parties on how Article 66.1 b) of Law 11/2022 should be interpreted, in order to issue a Circular on the matter, with the purpose of providing certainty to both parties involved: the interested parties and the companies.

This Circular aims to shed light on the assumption of legitimizing commercial calls when the basis of legitimate interest is used, since it is the assumption that generates the greatest problem when it comes to arguing it.

Subsequently, the draft Circular was presented and finally the final Circular was approved, which will be mandatory as of June 29, 2023 for any individual or legal entity, regardless of its sector. will be mandatory as from June 29, 2023 and for any individual or legal entity, regardless of its sector. and which, by way of summary, is set out as follows

Decalogue

The following changes apply to commercial calls made by a person and not to those made with automatic dialing systems without human intervention (e.g., with a prerecorded message).

1.- If you have previously given your consent you will be able to receive commercial calls.

2.- In order for the company to justify its legitimate interest in making commercial calls to you you must have had a previous relationship with it having purchased its products or services and, in addition, the ones it wants to offer you must be similar. must be similar to those you have previously contracted.

3.- This possibility only refers to calls from the company with which you have had this relationship and not to other entities, even if they belong to the same corporate group.

4.- If the contractual relationship is no longer in effect and you have not made any further requests or interactions with the company during the last yearthey will not be able to call you.

5.- Commercial calls can only be made to randomly generated numbers with the prior consent of the user.
Calls cannot be made to these random numbers based on the legitimate interest of the company, since it does not prevail over the right of users not to receive commercial calls.

6.- If your telephone number is listed in a subscriber directory may only use it for commercial calls if you have previously given your express consent, which must be included as a general rule in the corresponding directories.

7.- If you have previously registered in an advertising exclusion system (Robinson List) they can only make commercial calls to you if you have given your specific consent to the company calling you. If they do not have your consent, all companies that carry out commercial campaigns are obliged to consult these systems. If you have given your consent and do not want to continue to be called, you must revoke it.

8.- If you are a contact person of the entity in which you work you will be able to receive commercial calls only to relate with the entity and not with you as an individual.

9.- If you are an entrepreneur or liberal professional, you may only receive commercial calls referring to products and services related to your business or professional activity. business or professional activityand not on an individual basis.

10.- At the beginning of each call they must inform you the identity of the company or person on whose behalf you are being called, the commercial purpose of the call and the possibility of revoking consent or exercising the right to object. Please note that all calls must be recorded.

If you need help, contact your consultant or contact us by email: info@businessadapter.es, you can also call 96 131 88 04, or leave your message in this form:

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