Is the end of spam calls?

What does the General Telecommunications Law (“LGT”) say about “spam” calls?

Is the end of spam calls? The General Communications Law (“LGT”) was published on 28 June 2022.

In its article 66.1.b) it mentions that end users of interpersonal communications services have the right not to receive unwanted commercial calls.

The exception of this precept is that if there is prior consent from the user to receive them, or unless the communication can be covered by the exceptions provided for in art. 6.1. of the GDPR:

• The fulfilment of a mission carried out in the public interest.
• Legitimate interest.

Therefore, if the user does not give prior consent, companies are not allowed to call the user by telephone for commercial purposes.

This precept will not be aplicable if such communication is covered by the exceptions set out in the aforementioned Article 6.1 GDPR.

Before the publication of this law, it was not allowed to make unwanted calls for commercial purposes (“spam”) either. The innovation brought by this law is the precept of legitimate interest, which we will see below.

Legitimate interest

In order to prevent companies from covering all their “spam” calls with legitimate interest, the Spanish Data Protection Agency has established limits to this legitimate interest.

If not, a broad and flexible interpretation of it for the processing of personal data for the purpose of making unsolicited commercial calls would be contrary to the purpose of the regulatory reform.

In the event that there is a prior contractual relationship between the user and the company, legitimate interest may be alleged.

That is, if the user has established a prior contractual relationship with the telephone company.

Therefore, this company may call the user to offer products or offers related to what has already been contracted.

Robinson List

Is it still necessary to register my telephone number on the Robinson List in order to avoid receiving unwanted commercial calls?

As is known, the Robinson List is a free service responsible for advertising exclusion for the user, with the aim of reducing or limiting commercial impacts (telephone calls, mail and e-mails).

If you have given your consent (even if you did so unintentionally) or if you are a customer of a company, you will still be able to receive advertising calls.

However, this list is not entirely effective; many companies do not cross-check their data with the Robinson List and despite this make unwanted commercial calls to users registered on the list.

The modification of the General Telecommunications Law adds that companies will not be able to call the user directly if there is no legitimate interest or public interest.

Therefore, special attention should be paid when accepting the terms and conditions, as these often contain clauses on consent to receive commercial calls.

Who is affected by this treatment of “spam” calls?

Any user with a telephone number assigned to Spain will be affected by this provision. At the same time, any company that carries out its commercial activity in Spain, whether offering products or services, will also be affected.

Companies located outside Spanish territory but operating in Spain will also be affected, since they process personal data of EU citizens (the same applies to Data Protection).

There is a possibility where the company subcontracts another company located outside Spanish territory to make commercial calls.

In this situation, the company on whose behalf these calls are made will be responsible for the processing of the users’ data.

Penalties for non-compliance with regulations

Companies that continue making “spam” calls without the consent of users will face penalties of up to 100,000 euros.

It is considered a minor infringement under articles 108 and 109 of the Telecommunications Law.

The companies affected by these sanctions may appeal against them by means of:

• Appeal for judicial review to the Directorate of the Spanish Data Protection Agency.
• Appeal for judicial review to the Administrative Court of Appeal of the National High Court.

In conclusion, the prohibition or limitation of “spam” calls will be closely related to the consent of the end users.

The importance of the user carefully reading the terms and conditions when contracting a service is reiterated, in order to avoid consenting to the processing of their data for future unwanted commercial calls.

Hence, when the user has given his consent, the companies will be legitimised to make calls for commercial purposes.

Auratech is at your disposal.