10 May The “Do Not Call” Registry: mobile number registrations are now possible

Authors: Elisa Simionato, Luciana Di Vito e Marco Emanuele Carpenelli

The Italian “Do Not Call” Registry or Public Register of Oppositions (hereinafter also referred to as the “PRO” or “Registry”), known in Italy as “Registro Pubblico delle Opposizioni”, has repeatedly attracted the attention of many players, including – first and foremost – phone marketing companies, the recipients of such calls, the Italian Data Protection Authority,[1] and the legislator.

The PRO was established in order to exclusively “protect” those who had their landline telephone numbers included in public telephone directories and their postal addresses. Over time, the PRO has gained the support of many consumers, as they have been “harassed” by telemarketing companies, emphasizing the importance of such Registry. Moreover, the Registry has been significantly modernized by new legislative provisions, which, today, contribute to making it a tool at the disposal of citizens against aggressive commercial practices. The PRO will soon be affected by further legal innovations as part of the reform process introduced by Law no. 5/2018. In fact, on 27 July 2022, the provisions of Presidential Decree no. 26/2022 will enter into force, also allowing for mobile numbers to be registered.

Brief review of the origin and amendments to the “Do Not Call” Registry

The Registry was established with Presidential Decree no. 178/2010 and its creation, management and maintenance have been entrusted to the Ugo Bordoni Foundation[2], which acts as an independent third party body engaged in public interest activities.

By signing up, users were able to object – ex post, by exercising their right to “opt-out” – from receiving non-automated phone calls. Later on, when Presidential Decree no. 149/2018 came into force, the possibility to object to unsolicited marketing communications was also extended to postal addresses. A real reform of telemarketing was then launched in 2018, with the aforementioned Law no. 5/2018 which was implemented with Presidential Decree no. 26/2022 (hereinafter, the “Decree”), published in Italy’s Official Journal on 29 March 2022. The PRO will then “protect” all numbers, both landline and mobile numbers, regardless of whether their owners are natural or legal persons.

Latest news and next steps

Below a summary of the main aspects of the Decree and the new regulation on telemarketing, as announced by the 2018 reform, can be found:

• • • the Decree defines the functioning of the Registry, extended to all numbers (not included in public telephone directories), including mobile phones. In fact, once the new service starts, users will be able to register their phone numbers. With regard to numbers included in public telephone directories, it will also be possible to prevent paper-based marketing. The service applies to numbers belonging both to natural and legal persons, since they both are referred to as “contracting parties” (this term is similarly defined in article 130 of t Legislative Decree no. 196/2003);
    • by registering, all consents previously provided for phone marketing will be revoked. Thus, while the objection will affect human-operated calls, the revocation of consents will also apply to automated calls, implementing the amendments of the so-called Decree Law “Capienze”[3] that included “robocalls” in the PRO coverage;
    • the opt-out option – following the registration in the PRO or its renewal – does not affect operators who collected consent “as a part of specific existing contractual relationships, or contractual relationships ceased not more than thirty days ago, concerning the provision of goods or services, for which the right of revocation with simplified procedures is still ensured”[4].

However, calls coming from statistical agencies and offices belonging to the National Statistical System are not affected by the PRO.

Furthermore, providers who use telephone advertising and sales systems may continue to carry out their activities, provided that they comply with the obligation to access the Registry on a monthly basis and, in any case, prior to the start of each promotional campaign, and consequently update their contact lists (so-called “list-washing”). Unlike the current functioning, the system will notify the provider on the current status of each screened number – registered/not registered – and the date of the consent revocation, if any. The lists obtained will be valid for 15 days for telephone marketing, and for 30 days for postal marketing.

These changes will be followed by a number of preparatory activities. More specifically, as the terms for the public consultation of the main telemarketing operators and consumer associations – open from 5 April until 6 May 2022 – have expired, the Ministry of Economic Development is now to issue its technical regulation on the communication of landline numbers from telephone operators to the PRO provider. This regulation will be issued after consulting the Italian Data Protection Authority and the Authority for Communications Guarantees (better known as “AGCOM”)[5].

This service must be made available to citizens no later than 27 July 2022.

The Italian Data Protection Authority has also started to work on publishing a code of conduct aimed at regulating telemarketing activities and to counter unsolicited promotional calls[6]. At the beginning of May, AGCOM announced the start of its technical committee’s work on defining a code of conduct on how call centers/telemarketers should carry out their activities in the context of customer acquisition for electronic communication services, based on, among others, “… compliance by call centers with the rules on registration to the ROC, call-back possibilities by the caller, and a ban on changing the CLI of the line from which the call originates”[7].

Conclusion

Even if the Registry will continue to function according to the current rules in the coming months, it is necessary to be prepared in time in order to achieve the maximum level of compliance with the new regulations, as briefly outlined above.

For phone marketing operators

In order to process national landline and mobile numbers by telephone (with or without the intervention of a human operator), as well as to use addresses listed in directories for sending paper mail for marketing purposes[8], it will be necessary to submit a specific application to the PRO administrator in advance. In order to do so, phone marketing operators will need to provide (i) a proof of the identity of the operator; (ii) a declaration of activation of the calling line identification system, or of the use of codes or prefixes established by AGCOM, or by the third party to whom the service has been outsourced; and (iii) the list or lists of contracting parties that are the source of the data the operator is wishes to process[9].

Moreover, so-called “list-washing” represents a legal obligation that companies will not be able to avoid. This activity will probably need to be carried out twice a week (or once a month for physical addresses), in compliance with the validity period of the lists provided by the PRO.

Should commercial communications be targeted at a foreign audience, it will be necessary to carry out an overall check on local legislation and on any exclusion lists (also known as Robinson lists) similar to the PRO, even though these numbers cannot be entered in the Registry.

For contracting parties

From July 2022 it will be possible to register one’s mobile or landline number – not listed in public directories – in the “Do Not Call” Registry, by submitting a request via web, telephone or e-mail. Those who had already registered with the PRO in the past will be able to update their registration. Registration will be effective after 15 days. Once the registration is complete, new features will be available: registration renewal – which implies the revocation of consent given before the renewal date – and revocation of the registration, which may also be selective, i.e., valid only for certain specific operators.

[1] The Italian Data Protection Authority has intervened in a number of ways to counter “savage” telemarketing: see, for example, in chronological order, the order against TIM S.p.A. (Italian web doc. 9256486 of January 15, 2020); the injunction against Wind Tre S.p.A. (Italian web doc. 9435753 of July 9, 2020); the most recent order against Enel Energia S.p.A. (Italian web doc. 9735672 of December 16, 2021).

[2] Although the Ministry of Economic Development was appointed by law for managing the Registry, this responsibility has been delegated by the latter to the Ugo Bordoni Foundation (https://www.fub.it/en/).

[3] See Law no. 205/2021, converting, with amendments, the Decree Law no. 139/2021, published in Italy’s Official Journal no. 291 of 7 December 2021.

[4] As provided for in Article 1 paragraph 5 of Law no. 5/2018.

[5] AGCOM is the Authority for Communications Guarantees (Italian website: https://www.agcom.it/). It is an independent authority that performs regulatory and supervisory functions in the telecommunications, audiovisual and publishing sectors and, more recently, in the postal sector, in order to ensure fair competition between operators on the market and in order to protect users’ fundamental freedoms.

[6] See, for further details, the press release of the Italian Data Protection Authority, available at the following link (available in Italian only): https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9767711

[7] The drafting of the “Code of Conduct” initially began with the establishment of a technical table by means of AGCOM resolution no. 420/19/CONS of 17 October 2019. AGCOM has recently announced that its work will restart on 20 May 2022, with a meeting in which a schedule of subsequent activities will also be set. The convocation of the technical round table (available in Italian only) can be found here: https://www.agcom.it/documents/10179/26669152/Documento+generico+03-05-2022/09312e76-fb80-47ba-bb10-c0e26799a9d2?version=1.0

[8] Marketing purposes, i.e., to send advertising material, direct sales, or for market research or commercial communication.

[9] See art. 5 of Presidential Decree no. 26/2022.