We have all received a call for commercial purposes that may have been annoying due to the insistence and time of day at which it is received.
Pues bien, a partir de hoy entra en vigor el derecho contemplado en el artículo 66 de la Ley 11/2022, de 28 de junio, General de Telecomunicaciones, que contempla el derecho de los consumidores y usuarios a no recibir llamadas no deseadas con fines de comunicación comercial, salvo que exista consentimiento previo de los mismos o salvo que la comunicación pueda ampararse en algunas de las circunstancias previstas en el art. 6.1 del Reglamento (UE) 2016/679, de tratamiento de datos personales.
Therefore, companies engaged in the marketing of goods and services will be prohibited as a general rule from making commercial calls popularly known as ”spam” calls to fixed or mobile numbers assigned in Spain, as long as the express and unequivocal consent of the users has not been obtained beforehand or if it is not one of the exceptions contemplated in the aforementioned European regulations, such as the need to contact the user to execute a contract to which he is a party, to comply with a legal obligation or to protect his vital interests.
Failure to comply with the regulations will result in the imposition of a penalty regime. The Spanish Data Protection Agency (AEPD) will be in charge of ensuring compliance with the regulations and initiating the corresponding sanctioning proceedings.
Failure to comply with the requirement to obtain the user’s prior consent may be classified as a serious infringement or a minor infringement, depending on the assessment of the circumstances of the specific case by the competent body.
A final administrative sanction for the commission of two or more violations by the same company within a period of three years shall be considered as repeated non-compliance.
Thus, repeated failure to comply with serious infringements shall be considered a very serious infringement and repeated failure to comply with minor infringements shall be considered a serious infringement.
The main pecuniary penalties provided for are of notorious amount. The commission of a serious infringement may result in the imposition of a fine of up to two million euros and the commission of a minor infringement in the amount of up to 100,000 euros.
Furthermore, the law not only provides for these financial penalties but also for other accessory penalties such as the sealing or seizure of telecommunication equipment, the closure of facilities, penalties for persons who are members of the management or administrative bodies, etc., among others.
When determining the amount of the sanction, different circumstances will be taken into account, such as the seriousness of the infringements committed, the damage caused, voluntary compliance with the precautionary measures that may be imposed within the sanctioning procedure, the refusal or obstruction to access the facilities or to provide the required information or documentation, the cessation of the infringing activity prior to or during the processing of the sanctioning proceeding, the impact on protected legal assets relating to the use of the public radioelectric domain, public order, public safety and national security or the rights of users, as well as the active and effective collaboration with the competent authority in the detection or proof of the infringing activity.
In short, it remains to be seen how the application of the new regulation will transcend in practice and how marketing companies act since, as we have indicated, the law generally prohibits telephone ”spam”, but introduces a series of exceptions that could allow many companies to continue with this practice.
Article written by Cynthia Zárate