On January 21, 2022, the Council of Ministers announced the approval of the new regulation on the Public Opposition Register (RPO, i.e. Registro Pubblico delle Opposizioni), which will entail, once adopted by Decree of the President of the Republic, inevitable repercussions on the compliance of all companies that carry out telemarketing activities.
Established by Presidential Decree no. 178/2010, the Public Opposition Register is a free service by virtue of which a user (whether natural or legal person) can oppose the receipt of calls for promotional, advertising and also direct sales purposes, made by telemarketing operators. Presidential Decree no. 149/2018 subsequently equated, for the purposes of the RPO, telemarketing activities with those carried out by means of paper mail.
The new regulation was actually expected as early as 2018, with the approval of Law No. 5/2018, which provided for the issuance of a decree aimed at incorporating and implementing the mid-term changes.
The same Law no. 5/2018, in fact, provided for the extension of the possibility to enroll in the Public Opposition Register for all telephone users, both fixed and mobile, and both present in public lists and reserved.
Recently, moreover, the legislator has foreseen, with art. 9, paragraph 8, of Law Decree no. 139/2021, converted with amendments into Law no. 205 of 3 December 2021, the extension of the prohibition of contacting users enrolled in the Register also by means of calls made with automated systems, i.e. without the intervention of an operator (for example, with recorded messages).
The reform of the RPO is part of this regulatory framework, which, by implementing the provisions of the law, will enable users:
- a) to register with the RPO in order to oppose the receipt of calls with advertising purposes made on both mobile and fixed users, even if not in public telephone directories;
- b) to register with the RPO in order to oppose the receipt of calls for advertising purposes made both by operators and by automated systems that do not involve the intervention of an operator;
- c) to automatically revoke consents given by users prior to registration with the Register.
With reference to the second point mentioned above, it must be remembered that, under the provisions of art. 130 of Legislative Decree no. 196/2003, the use of automated calling systems without the intervention of an operator and electronic marketing communications (e.g. e-mail, SMS, MMS), for the purposes of direct sales or for carrying out market research, is permitted only with the express consent of the user (so-called opt-in system).
With regard to the forfeiture of consent given prior to registration in the RPO, the Privacy Guarantor had in the past held that the revocatory effect of consent could not derive from mere registration in the Public Register of Objections. The same had also held that registration in the Register could not lead to the revocation of consents previously expressed also with reference to automated calls, on pain of forcing telemarketers operating with automated systems to comply with obligations to consult the Register not provided for by law (Note of the Privacy Guarantor of June 24, 2021).
Today, following the intervention of the legislator in order to adapt the regulatory framework to the indications of the Guarantor, the latter has clarified that registration in the Public Opposition Register will result in the revocation of all previous consents to the processing of telephone numbers, expressed in any form or by any means, and to any subject operating both through operators and automated systems.
Revocation, therefore, will take place automatically, without the need for any unequivocal manifestation of will connected to the request for registration with the RPO or to the request for renewal, with the exception of consents collected in the context of an active contract (or one which has been terminated not more than thirty days previously) for the supply of goods or services. Where, on the other hand, a user registered with the RPO wishes to receive advertising from a specific operator, he or she must give consent directly to that specific operator.
Waiting for the issuing of the Decree of the President of the Republic, in the light of the innovations which it will implement, it is already possible to glimpse some initial implications on compliance for all telemarketing operators, i.e. those individuals, legal entities, bodies or associations, who use telephone advertising and telephone sales systems, or who carry out market research or telephone commercial communications.
The operators, by virtue of the provisions of Law no. 5/2018, will have to consult the Public Opposition Register on a monthly basis, and in any case before the start of each promotional campaign. This will entail the need for operators to proceed with at least monthly updating of their CRM lists and to proceed with the implementation of corporate procedures aimed at ensuring periodic consultation of the RPO and periodic updating of CRM lists. Consultation of the Register, as already pointed out above, must now be carried out by those operators who carry out telemarketing activities by means of automated systems, and will concern both fixed and mobile numbers.
Moreover, as a further element, it must be considered that consultation of the RPO by operators is subject to payment of access fees, which to date are regulated by the Decree of the Ministry for Economic Development dated January 30, 2020. Therefore, the activities of consultation and updating of CRM lists will inevitably entail an increase in the costs to be incurred for telemarketing campaigns, costs that operators will have to assess and budget.
Finally, it should be pointed out that the new regulations will only come into force once a period of 120 days has elapsed since the day of their publication in the Official Gazette, a period granted in order to carry out all the activities necessary for the fine-tuning and technical implementation of the service.