This article is expressly not legal advice in the sense of the Legal Services Act.
The ongoing corona-related partial lockdown continues to have a significant impact on the sales activities of numerous companies in the B2B environment. The sales teams of pharmaceutical, medical technology and industrial companies continue to face the challenge that personal visits are possible much less frequently than in the time before Corona. In this context, the telephone is gaining in importance as a sales channel and fast route to the customer, whether for acquiring new customers, supporting existing customers, placing new products and solutions or arranging appointments for a virtual meeting via Teams, WebEx and many others or for gaining a personal appointment on site.
Whether implemented in-house, e.g. by the company’s own sales teams, or carried out by agencies specializing in telephone contact in the B2B environment, companies are increasingly concerned with the question of the legal framework conditions for addressing their target groups by telephone.
Our cooperation with numerous companies from the pharmaceutical, medical technology and industrial sectors makes it obvious that the competencies in assessing the legal framework in this field are very different. The danger lies in misinterpreting the regulations of the European General Data Protection Regulation (GDPR) and the German Unfair Competition Act (UWG). This sometimes leads to misjudgements that result in target groups not being optimally addressed and thus existing potential remaining unused – with the corresponding negative consequences for the development of market shares and sales of the respective companies.
Probably the best-known new regulation of European data protection law, the General Data Protection Regulation or GDPR for short, came into force in May 2018 and was undoubtedly one of the most comprehensive legal changes of the past decade. Without exception, every company in Europe was required to effectively protect the data of its customers and to document the handling of this data in a comprehensible manner – for many a major investment in time and, of course, also financially, from the coordination of behavior toward customers to the establishment of certain IT structures.
However, despite the fact that it has now been almost three years since the GDPR came into force, there is still a great deal of uncertainty in the market: Am I doing everything right when it comes to handling my customers’ data? How do I deal with the request for data deletion? How long am I allowed to store data, how long do I have to store it, when and with what security standard do I have to delete it? And am I allowed to collect data from people who are not my customers?
This uncertainty extends across all industries and even into the legal departments of well-known companies, which, against the backdrop of the greatest possible security in business activities, tend to advise not to carry out a certain project if the legal situation is perceived as unclear or if it could theoretically collide with the regulations of the GDPR – even if, objectively speaking, it does not. And those without a legal department to ask tend to be even more cautious.
One of these business areas that seems to be severely restricted by the GDPR is customer acquisition. Here, the view often prevails that new customers may no longer be actively approached because “data protection” does not allow the contact data necessary for acquisition to be stored without an existing customer relationship, and even with existing customers it would not be possible to actively place advertising on a direct channel to which the existing customer has not expressly consented.
Many of these restrictions actually exist. However, this has not only been the case since 2018 and since the GDPR. And: these restrictions relate almost exclusively to addressing consumers – but not to addressing companies. With the main goal to protect consumers, the Unfair Competition Act (UWG) was passed back in 2004, which prohibited numerous forms of direct advertising without clear consent. This prohibited cold calling of consumers by telephone, for example, and has since been regarded as “unreasonable harassment.” This means that the German Federal Network Agency can impose substantial fines for reported violations.
When addressing new commercial customers, on the other hand, the UWG makes some clear distinctions. The most important of these is the classification as so-called “other market participants”, defined as “all persons who are active as suppliers or demanders of goods or services”. This results in a distinction between consumers on the one hand and “other market participants” on the other hand – the consumer is not commercially or independently professionally active on the market, whereas the “other market participant” is.
While consumers are now very comprehensively protected by the UWG and may not be cold-called or cold-contacted electronically (i.e. by e-mail, fax or SMS), the situation is different for companies. Here, only the electronic channels are prohibited for an initial advertising contact (without an existing opt-in), while the “presumed consent” of the person addressed must be observed for cold-calling. According to the Federal Court of Justice (ruling of March 11, 2010, I ZR 27/08, para. 20 f), this requires that “based on concrete factual circumstances, it can be assumed that the person called has a material interest in the telephone advertising.”
Now when can an objective interest of the called party be assumed? Here, it is essential that the subject of the call – the product discussed or the service offered – is central to the called party’s professional field of activity and that it is presumably in his or her own best interest to learn about it.
A production manager is probably interested in learning about solutions that will make his production more efficient and cost-effective. A physician is presumably interested in learning about preparations with which he can treat his patients better than before. In these cases, telephone solicitation is clearly legitimate, even for initial consultation.
It is important to note here that a called party can express its disinterest in the topic or in telephone advertising in general at any time and thus actively refute the presumed consent (which is a so-called opt-out). Although this does not make the initial call an unreasonable nuisance within the meaning of the UWG, any further advertising call must be stopped if the law is to be complied with.
Of course, such information must be collected in the sense of the GDPR; the interest of those contacted in documenting their opt-out alone makes it necessary to store this “no” in a personalized manner. But other contact information can also be processed electronically in order to be able to meaningfully shape future conversations with companies that have not revoked their consent. The GDPR recognizes this processing reason in Art. 6 (1) as “legitimate interest”.
The telephone can thus continue to be used as an effective sales channel in accordance with the guidelines of the GDPR, and a good telemarketing service provider will conclude a data protection-compliant commissioned processing agreement with you in order to meet all legal requirements.
Many greetings from the Mannheim Squares
Sales Unit Telemarketing GmbH – your leading telemarketing specialist in the industry and healthcare sectors. If you are interested, please feel free to visit us at www.sales-unit.de or contact us by phone at +49 / 621 122 84 872.