The Hamon Act of March 17, 2014 introduces in the French Consumer Code (Article L. 121-34 al 1er of the French Consumer Code) the possibility for any consumer to register, free of charge, on a list against cold calling.
A French decree of May 19, 2015, issued by the Conseil d’Etat (French Administrative Supreme Court) after the consultation of the French Data Protection Authority (CNIL) – published on May 21, 2015 – stated the functioning of the list on which consumers may register (hereinafter the “Opposition List”). It defined the resulting obligations for the professionals and the role and the prerogatives of the body in charge of regulating this Opposition List within the framework of a public service delegation.
An arrêté ministériel
(French ministerial order) published on February 28, 2016 appointed the company “Opposetel” as the national reference body. The website www.bloctel.gouv.fr
is the gateway allowing registration on the Opposition List.
This regulation came into force on June 1, 2016.
1. Professionals’ obligations regarding cold calling
1.1 Obligations regarding consumers
- Obligation to provide information to consumers − Professionals who collect telephone data have to inform consumers of their right to register on the Opposition List managed by Opposetel.
If the collection of consumers’ telephone data occurs during the conclusion of a contract, professionals must mention, in the contract, the existence of this right, in a clear and understandable manner for the consumers.
In other terms, during the collection of consumers’ telephone data, professionals have to ensure that consumers are aware of this new right and, if necessary, amend their contractual documents, including their terms and conditions, as well as their websites to clearly state this information.
- Obligations after the registration of the consumer on the Opposition List - If consumers register their telephone numbers on the Opposition List, professionals:
• Are prohibited from cold calling, directly or indirectly, these consumers, except in case of pre-existing contractual relationships (Article L.121-34 al 2 of the French Consumer code).
Which is the meaning to be given to this provision when for example a bank may wish to prospect one of its clients having a credit by offering him a life insurance contract?
• Are prohibited from leasing or selling files including consumers’ telephone data and contact details of these consumers (Article L. 121-34 al 4 of the French Consumer Code) ; and
• Must update commercial prospection files in order to remove consumers’ contact details by submitting a request to Opposetel (Article R. 121-7-1 of the French Consumer Code).
1.2 Obligation to refer to Opposetel
- The professional who usually resorts to cold calling must submit a request regularly, and at least monthly, to Opposetel to ensure compliance of their prospection commercial files with the Opposition List.
- Moreover, the professional who at times resorts to cold calling must refer to Opposetel before any campaign.
- It should be noted that only canvassing through telephone calls are concerned by this regulation, excluding text messages and voice mails.
- Finally, the professional must inform the CNIL that it will be sending its commercial prospection files to Opposetel and keep evidence of their submission to Opposetel.
1.3 Obligation to pay a fee
In return for using the services of Opposetel, Article R. 121-7-4 of the French Consumer Code provides that the professional must pay a fee including a fix part (related to the cost of the annual opening fees and file management fees) and a variable part (related to the costs borne by the body for exercising its prerogatives, notably the collection, the conservation and the management of consumers’ telephone numbers).
Failure by the professional to comply with the above obligations is subject to an administrative fine up to EUR 15,000 for a natural person and up to EUR 75,000 for a legal person that is likely to apply to each breach.
In addition, the consumer registered on the Opposition List and who is subject to a cold calling may file a complaint against the professional on the website www.bloctel.gouv.fr.
It should also be
noted that the agents of the French Consumer and Competition Authoritymay consult “free of charge” Opposetel to ensure that the professional meets its obligations regarding cold calling (Article R. 121-7-6 of the French Consumer Code).
2. Opposetel’s role and prerogatives
From June 1, 2016 and for a term of five years, Opposetel shall be responsible for managing the Opposition List and proceed to automatic processing of consumers’ personal data who no longer wish to be subject to cold calling. Opposetel is the sole member authorized to collect, register, store, edit or process the information included on the Opposition List (Article R. 121-7-1 of the French Consumer Code).
3. Registration on the Opposition List
The consumer who wishes to register on the Opposition List may do so electronically (through the website www.bloctel.gouv.fr.
) or by any other mean. The personal data that can be
mentioned on the Opposition List are exclusively:
- Telephone number(s) (landline and/or mobile) designated by each consumer wishing to register ; and
- The date and time of registration (Article R. 121-7-2 of the French Consumer Code).
After registration, each consumer will receive a receipt stating the date on which his registration will be effective and the term of his registration that will be communicated in the same way as the registration. Registration will be effective at the latest thirty days following the delivery of the receipt and will be valid for a maximum period of three years renewable. Opposetel shall inform the consumer of his registration renewal terms at least three months before the expiry of his registration on the Opposition List.
Moreover, the consumer may unsubscribe at any time from the Opposition List electronically or by any other mean. A confirmation of his delisting indicating its date of effect is issued to him in the same way as his initial request to unsubscribe.