Intrusion Upon Seclusion
- one of 4 traditional privacy torts
- IOS ” imposes liability on “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.”
- To succeed in an intrusion tort claim, the plaintiff must show that “the intrusion would be highly offensive to a reasonable person.”
- In contrast with intrusion tort requirements, telemarketing regulations in the United States address milder intrusions, which do not require a showing of “highly offensive” intrusion.
Telephone Consumer Protection Act of 1991 (TCPA)
- FCC issued regs that place restrictions on unsolicited advertising by telephone and fax. Updated in 2012 to address robocalls.
Telemarketing Sales Rule (TSR): Background
- FTC issued in 1995.
- Implemented the Telemarketing and Consumer Fraud and Abuse Prevention Act
- FCC has a counterpart rule
TSR: Do Not Call Registry, Background and Enforcement
The FTC, the FCC and state attorneys general enforce the DNC Registry.
- Now contains over 220 million participating phone numbers—and is still growing.
- $40,654 per violation.
- In addition, violators may be subject to nationwide injunctions that prohibit certain conduct and may be required to pay redress to injured consumers.
- Violation to call any number without checking registry first.
Exceptions to DNC Registry
- nonprofits calling on their own behalf
- calls to customers with an existing biz relationship (EBR).
EBR with customer - 18 mo. from last transaction
EBR with prospect - 3 months from application or inquiry - inbound calls, provided no upselling.
- Most BtoB calls
- Consent - in writing, with signature, clear n’ conspicuous
DNC Registry: Safe Harbor
Safe Harbor = [I]f a seller or telemarketer can establish that as part of its routine business practice, it meets the following requirements, it will not be subject to civil penalties or sanctions for erroneously calling a consumer who has asked not to be called, or for calling a number on the National Registry:
• The seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called, [and]
• The seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures, [and]
• The seller, telemarketer, or someone else acting on behalf of the seller . . . has maintained and recorded an entity-specific Do Not Call list, [and]
• The seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the National Do Not Call Registry. This, provided that the latter process involves using a version of the National Registry from the FTC no more than 31 days before the date any call is made, [and]
• The seller, telemarketer, or someone else acting on behalf of the seller. . . monitors and enforces compliance with the entity’s written Do Not Call procedures, [then]
• The call is a result of error.
TSR - How Calls Can be Made under Telemarketing Laws
The TSR requires covered organizations to:
• Call only between 8 a.m. and 9 p.m.
• Screen and scrub names against the national DNC list
• Display caller ID information
• Identify themselves and what they are selling
• Disclose all material information and terms
• Comply with special rules for prizes and promotions
• Respect requests to call back
• Retain records for at least 24 hours
• Comply with special rules for automated dialers
TSR - Entity-Specific Suppression Lists
- Consumers can put number on DNC Registry, or ask not be called again by the TMer/Seller. TMer/Seller required to maintain internal suppression lists to respect these DNC requests.
- If distinction between 2 divisions of one TMer/Seller (operational structure wise and types of goods/services wise), then request not have to be honored by one division if made by consumer to other division.
TSR Required Disclosures at Beginning of Call
The TSR requires that, at the beginning of the call, before delivering any sales content, telemarketers disclose:
• The identity of the seller
• That the purpose of the call is to sell goods or services
• The nature of those goods or services
• In the case of a prize promotion, that no purchase or payment is necessary to participate or win, and that a purchase or payment does not increase the chances of winning
Note that disclosures must be truthful.
Note: If made for multiple purposes, disclosures must be made for all SALES purposes.
TSR : Broad Categories of Information that Must Always Be Disclosed
- Cost and quantity
- Material restrictions, limitations, or conditions
- Performance, efficacy, or central characteristics
- Refund, repurchase or cancellation policies
- Material aspects of prize promotions
- Material aspect of investment opportunities
- Affiliations, endorsements, or sponsorships
- Credit card loss protection
- Negative option features
- Debt relief services
Note: For newer payment methods must now meet higher standard for authorizing a payment.
TSR: Other Requirements and Prohibitions
- Must transmit accurate caller ID - TMer or Seller or Seller’s customer service number. TMer not liable if caller ID not reach cosumer if they arranged for it to be provided with carrier.
- No call abandonment, i.e. hanging up or leaving dead air after 2 secs of consumer’s greeting. But is Abandonment Safe Harbor, if
sales rep takes at least 97% of calls actually answered by consumer,
allows 4 rings/15 seconds before giving up on call
plays recorded message stating name/# of Seller when live sales rep not available w/i 2 secs
maintains documentation of these reqs.
- To use pre-recorded message, must have consumer opt in.
- No billing for any goods/services without express informed consent. If during call, can get then. If have account info from another source, getting consent is harder.
Updates to FCC’s TCPA rules re. robocalls/autodialers
- 2012 revision to match FTC TSR.
- Even if have EBR, rquired to get express written consent for robocalls to residential lines.
- Must allow consumer to opt out of robocalls during a robocall.
- Robocalls subject to HIPAA are exempt.
Updates to FCC Approach to Robotexts
- FCC issued order in 2015 that text messages subject to same protections as voice calls under the TCPA. so robotexts require express consent also.
- Also required consent to include clear and conspic. disclosure that calls/texts can be made using autodialer or artificial voice.
- Consent not required for purchase.
- Consent can be revoked
-
TSR Record-keeping Requirements
- Following records maintained for 2 years:
• Advertising and promotional materials
• Information about prize recipients
• Sales records
• Employee records
• All verifiable authorizations or records of express informed consent or express agreement - Also - TMers and Sellers can decide how to keep records per contract.
- sales records must include:
(1) the name and last known address of each customer,
(2) the goods or services purchased,
(3) the date the goods or services were shipped or provided and
(4) the amount the customer paid for the goods or services. - Similarly, for all current and former employees directly involved in telephone sales, records must include:
(1) the name (and any fictitious name used),
(2) the last known home address and telephone number and
(3) the job title(s) of each employee.
State Telemarketing Legislation
- More than half the states require that telemarketers obtain a license or register with the state.
- States can also create their own DNC lists, with differing exceptions, fines or methods of consumer enrollment from their federal counterpart.
- Some states require that telemarketers identify themselves at the beginning of the call, or that the telemarketer terminate the call without rebuttal if the recipient of the call so desires.
- Finally, states may require that a written contract be created for certain transactions.
Fax Marketing
- TCPA, enforced by FCC, prohibits unsolicited fax. up to $500 per fax penalty. PROA included.
- Junk Fax Prevention Act - consent for commercial faxing from EBR, as long as opt-out provided.
CAN-SPAM apples to?
- to anyone who advertises products or services by electronic mail directed to or originating from the United States.
- covers the transmission of commercial email messages whose primary purpose is advertising or promoting a product or service.
- provides a mechanism for legitimate companies to send emails to prospects and respect individual rights to opt out of unwanted communications
CAN-SPAM requirements and prohibitions
- Prohibits false or misleading headers
- Prohibits deceptive subject lines
- Requires commercial emails to contain a functioning, clearly and conspicuously displayed return email address that allows the recipient to contact the sender
- Requires all commercial emails to include clear and conspicuous notice of the opportunity to opt out along with a cost-free mechanism for exercising the opt-out, such as by return email or by clicking on an opt-out link
- Prohibits sending commercial email (following a grace period of 10 business days) to an individual who has asked not to receive future email
- Requires all commercial email to include (1) clear and conspicuous identification that the message is a commercial message (unless the recipient has provided prior affirmative consent to receive the email) and (2) a valid physical postal address of the sender (which can be a post office box)
- Prohibits “aggravated violations” relating to commercial emails such as (1) address-harvesting and dictionary attacks, (2) the automated creation of multiple email accounts and (3) the retransmission of commercial email through unauthorized accounts
- Requires all commercial email containing sexually oriented material to include a warning label (unless the recipient has provided prior affirmative consent to receive the email)
CAN-SPAM enforcement
- FTC primarily
- Penalties up to 40,654 per violation.
- also commercial email subject to laws banning false or misleading advertising
- FTC issued rules in 2008
- State AGs as well and other state officials-
- ISPs can sue violators for injunction and damages if adversely affected. $250 per violation up to $2M.
But otherwise no PROA. - Certain conduct is criminal - 5 years max
- Treble damages for willful or aggratated.
- Pre-empts other laws except deceptive/false advertising laws.
CAN-SPAM distinction of “transactional or relationship messages”
Primary purpose:
- Facilitate or confirm an agreed-upon commercial transaction
- Provide warranty or safety information about a product purchased or used by the recipient
- Provide certain information regarding an ongoing commercial relationship
- Provide information related to employment or a related benefit plan
- Deliver goods or services to which the recipient is entitled under the terms of an agreed-upon transaction
Wireless messages under CAN-SPAM
- FCC issued CAN-SPAM rules re. mobile service commerical messages (MSCMs), including commercial texts.
- MSCM = a commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of a commercial mobile service.”
- not cover phone to phone
CAN-SPAM Express Prior Authorization
- prohibits senders from sending MSCMs without subscriber’s “express prior authorization” - for each MSCM.
- Detailed requirements:
Must be express, not negative option.
Must be prior to sending MSCMs.
No cost to consumer to the authorization or revocation process.
Each authorization must include disclosure stating that:
- agrees to receive MSCM to device from specific sender
- may be charged for receiving message
- may revoke at any time
Sufficiently legible, large type, separate
Each sender - even affiliate and marketing partner - must get separate auths.
Can be written or oral
revocation allowed by same means as auth.
Wireless Domain Registry
this is to help senders know whether they are sending MSCM or just regular commercial email.
Senders check the registry, and if where they want to send is on it, then they know MSCM rules apply.
Commercial mobile service providers must update list to FCC within 30 days.
Telecommunications Act of 1996: Background and Definition of CPNI
-Covers telecom companies themselves, not marketing rules
Section 222 governs privacy of consumer information provided to telecom carriers.
- Customer Proprietary Network Information = access, use, disclosure governed by TeleAct96
- CPNI= information collected by telecommunications carriers related to their subscribers. This includes subscription information, services used, and network and billing information as well as phone features and capabilities. It also includes call log data such as time, date, destination and duration of calls. Certain PI such as name, telephone number and address is not considered CPNI.
