18 Mar The French Senate rewrites the Naegelen bill on telephone marketing and fraudulent calls
Deeply reworked by the Senate, the bill proposed by MP Christophe Naegelen, on telephone marketing and fraudulent calls, will now come back in second reading to the National Assembly:
- A new Article 1A of the bill as voted by the Senate specifies the terms of registration (by dematerialized, postal or telephone) of consumers to the Bloctel list (of opposition by a consumer to receive telephone marketing calls), in Article L. 223-1 of the Consumer Code;
- A new Article 1B adds information on the possibility, by registering with Bloctel, for a consumer to oppose the telephone solicitation of his number to the mandatory provisions of electronic communications contracts, as defined by Article L. 224-30 of the Code of Consumer Affairs;
- In Article 1, the Senate pruned the provisions of Article L. 221-16 of the Consumer Code requiring the agent of the call centre, at the beginning of each call, to specify the commercial nature of the call and the identity of the company for which this call is made, and forcing him to develop the acronyms he uses;
- Article 1bis replaces the commitment of professionals to respect a code of good practice by ethical standards set by decree, after consulting the National Consumption Council. This decree determines the days and times as well as the frequency with which commercial prospection by telephone is authorized.
- Under Article 2, the report of the Government to Parliament on the effectiveness of the Bloctel mechanism, planned by the Assembly, is replaced in the Senate by the provision in open data of the essential data of the Bloctel system;
- Articles 2a, 2b, 2c and 4, relating to increased penalties for certain practices relating to telephone prospecting, are left unchanged by the Senate;
- The Senate introduces in article 3 bis limiting the amount of the fines in case of cumulation of administrative fines and criminal fines;
- The Senate deleted Article 5 voted by the Assembly, which proposed to restrict the purpose of telephone prospecting to Bloctel subscribers to solicitations directly related to the subject matter of an ongoing contract, thereby returning to provisions in force which authorize such appeals in the case of pre-existing contractual relations;
- Article 6 has been amended by the Senate, which adds (Article 6A) the requirement of several provisions to contracts between PRS operators and service providers: the contract must provide for the suspension of access to the service , potentially followed by termination in case of recidivism, in case of missing, inaccurate, obsolete or incomplete information in the PRS reverse directory (http://www.infosva.org); termination is subject to an injunction remaining unsuccessful;
- Article 6B rewrites the provisions relating to the reporting tool for PRS abuse cases (Articles L.224-47 and L. 224-47-1 of the Consumer Code), stating that the conditions for the certification of reports will be defined by ministerial order; on the contrary, the automatic nature of the obligation for the PRS operator to suspend access to the service and, in the event of a repeat infringement, to terminate a value-added number, in the event of a breach of obligations relating to the PRS reverse directory, is confirmed;
- Articles 7 (on the publicity of sanctions) and 8 (on exceptions to this advertisement) are unchanged.
What to expect from second reading by the National Assembly?
In terms of telephone prospecting, the principle of the restricted opt-out of consumers is confirmed by the Senate.
The further development of this bill will now depend on the responsiveness of MPs to the amendments made to their text by their colleagues in the Senate. The main sticking point is likely to be article 5, which was voted down by the Senate against the advice of the government. This suppression was warmly welcomed by the profession of call centres (French Association of Customer Relations, Federation of Direct Selling, …).
The publication of Bloctel data in open data, instead of a report from the government to parliament on the effectiveness of Bloctel, was also decided by article 2 against the government’s opinion.
The introduction by article 1 bis of ethical standards validated by decree in place of a charter of good conduct of the call centres and their principals has, in turn, received the approval of the government.
Possible areas for improvement not identified by the Senate
The effectiveness of Bloctel is only very indirectly addressed. The opposition between the means provided for this purpose by the Assembly (a report) and by the Senate (open data) is very artificial. How can open data replace a report from the government to parliament? Nobody defines the “essential data” of the activity of Bloctel, which should be published in open data, according to article 2. The vicious circle of the service to which too few companies subscribe because it is too expensive remains intact. As we said in a previous post, Bloctel is a public service delegation that is legitimate to cover its costs and make a reasonable profit, but it is also a monopoly, whose too high tariffs dissuade companies from using its services. 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. Will it be necessary to wait for 2021 and the renewal of the public service delegation provided by Bloctel for the DGCCRF to address this issue with the organizations of distance selling, customer relations and call centre professionals?
The Bloctel system, like the AFMM system, is based on the notion of reports. But most consumers, and up to Mrs. Agnès Pannier-Runacher, Secretary of State to the Minister of Economy and Finance, during the debate in the Senate, qualify these reports of claims. Who says claim implies a request for an answer from the one who files the claim. But the reports to Bloctel on the undue telephone prospection, as well as the reports to the AFMM on the SVA, do not provide any return to the consumer. This rightly frustrates the latter, but also the PRS service providers, to whom the identity of the claimant is hidden. A good faith PRS service provider should be able to provide an answer to the complaining consumer. It may be useful, to protect the consumers of aggressive service providers, that this response goes through the channel of the AFMM system, but the present systems, which systematically leave no individual response to the reports to the AFMM as well as to Bloctel, are not satisfactory.