E-disclosure for Nuisance Calls and Texts

Everyone I know seems to regularly complain about nuisance and menacing calls, texts, emails and other types of unsolicited communication. Some can be opportunist sales communications but others can be more sinister.

Unwanted electronic communications can be separated into eight different categories:

  • Live telesales calls
  • Automated marketing calls
  • Abandoned and silent calls
  • Spam texts
  • Marketing faxes
  • Fax in error calls
  • Marketing emails
  • Abusive and threatening calls¹

As the use of these services is often built into standard T&Cs, customers are deemed to have given permission for this kind of communication at the point of purchasing a product or service, therefore current regulation doesn’t help in these circumstances. Silent calls are a separate issue and are viewed more harshly as they are commonly used to determine whether phone numbers created by auto-diallers are active. This is a criminal offence and the advice is to hang up and call the police.
We split these potential areas of concern into three specific categories:

  • Helping the Consumer
  • Supporting Corporates
  • Fighting Crime

Helping The Consumer
In the US, an emerging trend is Mass Tort (mass action lawsuits), where a large number of people claim against one or several companies. These claims are managed as one case, however the individuals and the individual result remain unique; whilst knowledge and case time is shared.

For the UK, CCL extracts and provides the electronic data which may be required for these cases. Additionally, we can use our specialised tools, such as Nuix, to link case data and evidence, providing the client with maximum knowledge for each relevant data set.

Another trend that emerged, especially since the beginning of the Jackson era, is the use of Subject Access Requests (SARs). Given our experience in supporting our legal clients in defending SARs, we are aware of what is required from the recipient of a SAR.

Supporting Corporates
The risks for organisations which do not comply with the regulation can be significant. Since the LIBOR investigations and the rise of the Dodd-Frank era, regulators are increasingly requesting data from organisations. These requests are often hugely demanding with tight deadlines.

CCL often works to these deadlines in high-value litigation cases and we can provide a full spectrum of services, including: collection, processing, review and producing electronic data for courts and regulators. Our teams also provide introductory training to clients who have limited knowledge of the workflows and legislations. On completion of a case we can work with your teams to minimise the risks of repeating incidents.

It is also possible to split what appears to be genuine information from bogus information through automated coding and intelligent searching of received data. A classic example is PPI ; claims companies create customer claims against multiple banks without prior validation of the data and send a copy of all the data to every bank. In this instance, each bank has to filter though the list for the claims they have to reply to. They also need to validate the claims against their criteria, e.g. was the claimant a previous customer of the bank.

Fighting Crime
Many criminals use pseudo marketing as a phishing mechanism to sell your information or steal your identity. Our leading digital forensics department regularly recovers and investigates this data. This can be from physical media such as phones, computers and servers or from structured data such as databases and sales management systems; as well as classic data such as email and office documents. The regulators have made it clear they are intent on investigating and bringing to justice those who use this fake marketing or silent calls for criminal purposes.

Recently I have worked on a wide scale fraud, set up by a national company. To aid our client we investigated a CRM system, identified the pseudo-names of those who were making calls, promising goods that would never arrive and linking these to the purchase orders as well as evidence of their deliberate miss-selling. This enabled our client to prosecute the individuals involved and order the winding up of the company.

Conclusion
As long as you have given permission to companies, this type of marketing is considered fair by the regulators. It is clear that current regulation is not specific enough about ‘permission’ and when it comes to such methods of communication, greater clarity may be required about the definition and potential levels of customer permission. However, we are in a situation similar to many other regulations where companies can use the laws to the extreme and consumers can be left unsatisfied. This has led to many parallels with the standard e-disclosure workflow. Whether that be protecting the consumer, assisting the corporates to comply with regulation or fighting crime.

James Lawson
e-Disclosure Review and Productions Supervisor