The Naegelen bill and telephone marketing

The Naegelen bill and telephone marketing

What did the National Assembly vote?

On December 6, 2018, by 79 votes to 1, the French National Assembly voted the bill proposed by MP Christophe Naegelen, related to the rules of telephone marketing and to the fight against fraudulent calls. After our post of December 17 devoted to the fight against fraudulent calls, here is a second one, dedicated to the rules of telephone marketing.

The new wording of Article L. 221-16 of the Consumer Code (CC) adds to the existing obligations of the call centre agent, which are to:

  • give one’s name (no more European pseudonyms for African employees?),
  • give the name of the payer of the call campaign,

three new obligations:

  • report the commercial nature of his/her call,
  • remind the consumer of the possibility of registering for free with the Bloctel phone marketing opposition scheme,
  • develop the acronyms he/she uses.

The new wording of article L. 223-1 CC maintains the opt-out (or exclusion option, in force thanks to the Bloctel scheme) to the detriment of the opt-in (or option of inclusion), but makes the opt-out stricter:

  • The right for the business person to call the consumer registered on Bloctel is limited to solicitations directly related to the subject of an ongoing contract, and no longer to the existence of pre-existing contractual relationships.
  • Bloctel’s verification of business prospecting lists must be done once a month; if the professional does less than one campaign per month, this check should be done before each campaign.

Article L. 223-1 CC also specifies that the professional who has validated his prospecting lists by Bloctel must undertake to respect a charter of good conduct, but it is necessary to refer to the records of the parliamentary debates to understand that this charter must be drawn up by the National Committee of Consumer affairs.

The ceiling of administrative fines strictly related to marketing by telephone or by any other means of electronic communication is multiplied by 25, reaching 375 000 € for a company, while the ceiling of other fines related to remote selling to a consumer remains unchanged. The sanctions specific to a non-use or misuse of Bloctel may also be published at the expense of the condemned company.

Finally, the government will have to report to Parliament on the effectiveness of Bloctel within six months of the enactment of the law.

What can we say about the effectiveness of Bloctel?

Insufficient promotion to businesses, too few registered companies, too expensive a service

The first type of reproach made to Bloctel concerns its business model. Bloctel is a public service delegation that is legitimate in covering its costs and making a reasonable profit, but it is also a monopoly, whose too high tariffs dissuade companies from using its services. Any product launch, especially when its costs are essentially fixed, is a bet on the quantities sold according to the price offered. It would be desirable for Bloctel’s rates to be adopted after consulting the distance selling professional organizations on the reasonably marketable quantities of Bloctel’s services based on the reasonableness of the rates.

An opaque reporting system for the signal poster, not coupled with the VAS abuse reporting system, and the effects of which are not fast

The second type of reproach often heard about Bloctel is about its reporting system. If a quarter of the reports to Bloctel relate to premium rate services, why are these reports not forwarded to the AFMM, which manages premium rate service reports? Who manages the reports to Bloctel? If it is only the DGCCRF, the Directorate General for Competition, Consumer affairs and Fraud Repression, its administrative investigation procedure lasts an average of one year. The experience of premium rate services shows that many abuses can be ended by contacting the publisher of the service directly, via the operator who provided him with his number, the DGCCRF investigations retaining their usefulness for the most serious cases. One could imagine to copy the processing of the reports to Bloctel on that of the reports to the AFMM, but it would be more the work of a professional association than that of a delegation of public service. Finally, with Bloctel as well as with the AFMM, signal posters are not informed of the follow-up given to their report. The sending of emails or SMS at each change of state of the incident ticket generated or fed by the report could be considered.

What next?

It is the Senate’s turn to examine this bill, before the second reading by each of the assemblies, followed eventually by the inter-assembly committee. The way is still long from the bill to the law, and the detail of the operation of Bloctel (tariffs, management of the signals) require adjustments which do not belong to the law but to regulation or co-regulation. A nice field work for 2019.