As of June 29, the new General Telecommunications Law. A new regulation that is also known as the antiSPAM law due to its article 66, which will prohibit commercial calls without prior permission. Will we finally be able to stop receiving these types of calls? Here we explain what the regulation consists of and what are the challenges it faces to make it truly effective.
What does the law establish? as is defined in law 11/2022we will have the following right:
“not receive unwanted calls for commercial communication purposes, unless there is prior consent from the user himself to receive this type of commercial communication or unless the communication can rely on another basis of legitimacy than those provided for in article 6.1 of the Regulation (EU ) 2016/679 on the processing of personal data.”
In other words, the new regulations want to put an end to commercial calls, regardless of whether they are from a telemarketer or from any type of business.
Companies that fail to comply with this obligation may be fined by penalties of up to 100,000 euros, for minor offenses, and up to 20 million euros, in the most flagrant cases.
From July we should notice it. The law was published in the BOE on June 29, 2022. Although, the law gave companies a period of up to one year to adapt and comply with the legislation. This period ends in a few weeks. Starting in July, companies that continue to make these calls without permission will face penalties.
This regulation is one more step to the limitations that the General Law for the Defense of Consumerswhich limited the hours for commercial calls.
The AEPD will be in charge of persecuting those who skip it. The law applies to numbers with fixed or mobile numbers assigned in Spain, as explained by the Secretary of State for Telecommunications.
The body in charge of monitoring compliance with this obligation will be the Spanish Agency for Data Protection. When they detect or receive a complaint of a commercial call without permission, they will proceed to address the company and initiate a disciplinary procedure.
What happens with the ‘call centers’ outside Spain. The regulations apply to Spanish telephone numbers. However, in the event that a company makes commercial calls outside of Spain, the AEPD may also contact that company.
The AEPD has sanctioning power on data protection and can apply these sanctions to companies abroad. In case of not paying these fines, there would already be a process by ordinary justice that should be resolved by analyzing each case. As with privacy regulations, the law is quite clear. While there are companies that decide to go on their own.
The telcos have made a pact to stop making them. Although this anti-SPAM law is for all types of companies, a very common sector in this practice was the telemarketers.
At the beginning of 2023, the main operators in Spain: Movistar, Tuenti, O2, Orange, Jazztel, Amena, Simyo, Vodafone, Lowi, Ono, Másmóvil, Yoigo, Lebara, Llamaya, Happy Móvil and Pepephone, joined in a Code of self-control behavior to, among other aspects, agree to stop making this type of spam calls and act when there is a case related to them.
The “consent trap”. This is where the underlying problem of this type of commercial calls is likely to lie. The regulations indicate that they cannot be received without prior consent. However, companies have many alternatives to obtain this consent.
From emails to associating the permit with the purchase of a product. There is a lot of fine print that we sometimes sign without knowing all the terms and conditions. Hidden among all that text, some companies could hide an authorization that later leads to commercial calls.
According to explains the AEPD in its legal reportobtaining this consent must also comply with the Regulation 2016/679. That is, a “clear affirmative act that reflects a free, specific, informed, and unequivocal manifestation of will.”
What exceptions are there. Yes, there are some occasions when we may receive calls without prior notice. They will be those in which their realization is essential for the vital interests of the citizen or it can be argued that there is a public interest.
Examples of these are, for example, the surveys of the National Institute of Statistics, awareness campaigns or some other type of call related to research.
Image | Lindsey LaMont
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