IrelandIrish ePrivacy Regulations
Officially S.I. No. 336 of 2011, Unsolicited Telephone Calls for Direct Marketing
S.I. No. 336 of 2011, reg. 13(5)-(6), (8)-(9)
In force since .
A telephone contact rule binding public and private bodies.
- Obligation class
- Consent, Disclosure
What it requires
- Before making a live telephone call for direct marketing, check that the called line has not told you not to call and is not recorded on the National Directory Database's opt-out list; if neither applies and the number is not a mobile, you do not need the recipient's prior consent for that call alone.NIST Privacy FrameworkCT.PO-P3
- Get the called subscriber's or user's prior consent, or check it is recorded as consenting in the National Directory Database, before making an automated-calling or telephone call for direct marketing to a mobile telephone number.NIST Privacy FrameworkCT.PO-P1
- Let a subscriber or user register an objection, or a request to be added to the National Directory Database, free of charge.NIST Privacy FrameworkCT.PO-P3
- You do not contravene the National Directory Database opt-out rule by calling within 28 days after a request or notification was received and recorded in the Database; that 28-day period does not apply to a refusal the subscriber told you directly.
These lines are LexLint's reading of the law's text. Also read by: Data Protection Commission (guidance, recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CT.PO-P3Policies, processes, and procedures for enabling individuals’ data processing preferences and requests are established and in place.
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Each contravention of paragraph (5) or (6) is a separate offence (the making of each unsolicited call counts separately), carrying on summary conviction a class A fine (currently a fine not exceeding 5,000 euro under the Fines Act 2010) and, on conviction on indictment, a fine not exceeding 250,000 euro for a body corporate or 50,000 euro for a natural person; there is no imprisonment term for this offence. The defendant bears the onus of proving the recipient's consent where consent is in issue.
Penalty structure
Regulation 13(15): on conviction on indictment, a fine not exceeding EUR 250,000 for a body corporate and EUR 50,000 for a natural person; on summary conviction, a class A fine, which section 3 of the Fines Act 2010 sets at not more than EUR 5,000. The sending of each unsolicited communication or the making of each unsolicited call is a separate offence (regulation 13(13)(b)).
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 250,000
Who enforces it
Enforcement body
Data Protection Commission, which investigates complaints and may bring and prosecute summary proceedings for an offence under the Regulations (regulation 26); because a breach of regulation 13 is itself an offence, it is prosecuted rather than met with an enforcement notice. The Commission for Communications Regulation (ComReg) separately monitors compliance with this regulation and may issue directions for its effective implementation.
Settledness
- As of
- Guidance link
- https://www.dataprotection.ie/en/faqs/direct-marketing/can-my-mobile-phone-be-targeted-marketing-phone-calls
- Guidance body
- Data Protection Commission
- Open questions
- Does the consent requirement of Regulation 13(6) of S.I. No. 336 of 2011 for marketing calls to a mobile telephone apply where the subscriber is a business, given that the Data Protection Commission's guidance says direct marketing emails and text messages to businesses may be sent until the business asks the sender to stop?
What this law does
Regulation 13(5) bars an unsolicited telephone call for direct marketing to any subscriber or user who has told the caller not to call or whose line is recorded on the National Directory Database's opt-out record, so a live call to a number other than a mobile needs no prior consent unless the called line has already opted out.
Regulation 13(6) requires the called subscriber's or user's prior consent, or recorded consent in the National Directory Database, before an automated calling machine or telephone call markets to their mobile telephone.
Regulation 13(8) lets a subscriber or user register an objection, or a request to be recorded in the National Directory Database, free of charge, and regulation 13(9) means a caller does not contravene the National Directory Database opt-out rule by calling within 28 days after a request or notification is received and recorded in the Database.
When LexLint raises it
When your app profile says your app places automated calls.
Back to the example · Lint your app
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