Privacy: Frankfurt Court restricts Cold Calling

I am grateful to Baker & McKenzie for drawing to my attention to a decision of the Oberlandesgericht (regional court of appeal) at Frankfurt am Main on 21 July 2005. A press release dated 18 August 2005 with the judgment attached appears on the court website.

It is not clear from the judgment whether it is based on German domestic law or the transposition off Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) or its predecessor Directive 97/66/EC (telecommunications dataprotectionn directive) which is now substantially repealed. I should welcome readers' guidance on the point.

If it is the latter, it would be "gold plating" par excellence. Art 13 (1) of the 2002 directive requires EC member states to allow the use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing only in respect of subscribers who have given their prior consent. The court appears to have construed the requirement for "prior consent" as consent for the particular transaction and not for a related one. Merely giving a phone number is not enough.

In view of the annoying spate of silent calls recently, which apparently result from the facility of power diallers to call more numbers than there are bods in call centres to pick up them up, I personally would welcome a more restrictive approach here. The present guidance of the Information Commissioner to the Privacy and Electronic Communications (EC Directive) Regulations 2003 which implements the directive in this country is on the Commissioner's website. The essence of the Commissioner's position on cold calling is that, although such matters can sometimes be referred to the Information Commissioner, he can only look at complaints about automated calls only where it is possible to identify the caller and the caller is based in the UK. Otherwise the public is referred to ICSTIS for premium rate calls and the Telephone Preference Service.


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