Why doesn’t phone spam stop if it’s prohibited by law? What I can do?

Nap time should already be safe from commercial calls: no unwanted offers to change mobile company, no promotions for life insurance, no quick loans. At least that’s how it should be since June 29, when the one-year term that companies had to eliminate commercial calls that have not been authorized by the line owner expired.

The General Telecommunications Law, which was published in the Official State Gazette (BOE) in June 2022, was intended to limit this annoying sales strategy. However, many users report that they continue to receive these uncomfortable calls under different pretexts, among others, having given consent by accepting cookies through the website, being a former customer or not having requested that their data be removed from the records.

Is it possible that since they banned commercial calls they are calling even more?

— José María Real (@RealJoseMaria) August 3, 2023

They can do it? Why do they keep calling?

From the outset, the law establishes that so-called spam calls cannot be made unless there is the express consent of the owner of the line. However, the Spanish Data Protection Agency (AEPD) introduced another exception: legitimate interest calls. “If the calling company can justify that its legitimate interest in making the call (and the user has not exercised their right of opposition in this specific matter) the right of the company prevails over that of the users not to receive them”, the statement states. agency in a circular issued on its website.

Leticia Grande, a lawyer for Reclamador.es, explains that “there is that loophole”, but that they cannot use it lightly: “Alleging the concurrence of legitimate interest is an exception, which requires a restrictive interpretation by the company. For example, a company will be able to call a user who is already their client, as long as they offer them a service similar to the one they have already contracted, ”she explains. Otherwise, the companies could face serious fines.

If commercial calls without permission have been prohibited since June 29, how come I received two calls this morning, one from an operator with an orange name and another from a foundation to become a member?
Companies flout the law openly

— Sergio M🍇ra (@Sergio_Mrrz) August 7, 2023

Consumer associations have already begun to take action on the matter. They say that before this new framework was launched, commercial calls had already been limited. Specifically, they were only allowed between nine in the morning and nine at night and on weekdays. In addition, the right of users to request the company to delete their contact number from the databases was also contemplated. “There were many regulatory elements, but few complaints,” says Rubén Sánchez, general secretary of the Facua organization.

To do?

Some of the arguments that users have encountered when informing salespeople that these types of calls were illegal is that they had given their consent, for example, by accepting a cookie policy. The general secretary of Facua explains that “in the cookies of a website you do not provide your telephone number” and he recommends reporting in case of doubt. “If the user is not aware (of having given their authorization), it is better to report it,” he concludes. The organization, in fact, has already begun to move. “We have already begun to present the first complaints with the new regulation,” warns Rubén Sánchez.

The Reclamador.es lawyer explains what can be done in the event that the commercial calls persist: “The user, after having informed the company of his express opposition, as well as the request to delete his data, may file a claim with the Spanish Data Protection Agency (AEPD) or before the Autonomous Consumer Authority”.

Grande emphasizes that the exception of “legitimate interest” contemplated by the law “can in no case manipulate the purpose of the rule”, which is to avoid users these annoying calls. If they persist, the lawyer advises signing up for an advertising exclusion service —such as the Robinson List—, since companies, even if they claim legitimate interest, are obliged to consult these systems beforehand. “And, of course, those affected may file a claim with the AEPD, which may impose significant sanctions on companies that violate this Law,” she says.

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