Operational as of today, July 27, 2022, is the new Public Register of Oppositions (RPO) in Italy, which regulates opt-out to telemarketing extending to mobile numbers and introducing new rules also for paper mail.
After a four-year wait – punctuated by the adoption first of the law amending the Public Register of Oppositions in Italy, Law 5 of 2018 and then Presidential Decree 26/2022, and finally by consultations in recent months – the new RPO will finally go live.
The aim of the reform is to impose a decisive clampdown on aggressive telemarketing practices and provide users with new ways of protection. The Public Register of Oppositions is a so-called Robinson List that allows individual to automatically opt-out to telemarketing and postal marketing communications by just enrolling in with RPO.
What will change with the new Public Register of Oppositions for landline and mobile telemarketing in Italy?
The main changes that have been made with the new Register of Oppositions are as follows:
- registration in the RPO is extended to all telephone numbers, fixed (even if not included in subscriber lists) and mobile;
- the user will be able to register through three ways (via website, by calling a verse number or by email). Once enrolled, he/she will be able to use new features, such as renewal of enrollment and “selective revocation” of enrollment even against only one or more companies;
- as before, by registering with the RPO, users exercise their right to object to the processing of their telephone number for the purpose of sending advertising material, direct sales, commercial communication or the conduct of market research carried out through the use of the telephone (i.e. telemarketing). However, with the new RPO, enrollment of the number will also result in the revocation of all consents previously given by the user for telemarketing purposes. As the only exception: consents given under a contract that was active or terminated not more than 30 days ago will remain valid;
- enrollment in the RPO will cover telemarketing calls made both with the use of an operator and without an operator (so-called robo-calls);
- in the event of data transfer to a third party, the transferor will have to query the RPO at the time of transfer and not transfer the contacts of individuals who have enrolled in the registry; and
operators, unless they fall under the exception described above, will therefore no longer be able to rely on the
- consent given by the user, but will in any case be required to consult the RPO before each telemarketing campaign (and in any case monthly).
This last change is definitely onerous, not least because at the moment it would not seem to be possible to register with the RPO through an intermediary (e.g., a marketing agency), which means that it means that any company involved in telemarketing activities will have to register.
What changes with the new RPO for paper mail?
The application of the RPO remains extended to paper mail as well (an extension already introduced by Presidential Decree 149/2018 and now maintained in the new RPO). Indeed, users can continue to register their mail address to object to receiving advertisements via paper mail as well.
There is, however, a misalignment between Law 5 of 2018, which makes no mention of paper mail, and Presidential Decree 26/2022 implementing that law, which in providing for the operating rules of the new RPO retains references to paper mail and thus seems to extend some of the provisions of Law 5/2018 to paper mail as well.
However, important gray areas remain. In particular, it would be useful to clarify whether the exception on the validity of consents, prior to registration, in constancy of contractual relationship expressly provided for telemarketing is also applicable to marketing communications via paper mail. In addition, some knots remain to be unraveled with respect to how to query the RPO in the case of marketing by paper mail done by third parties, who are not party to the contractual relationship with the user.
The gray areas of an all-Italian regulation
A further area of interest concerns the compatibility of the provisions of Law 5 of 2018 on automatic withdrawal of consent after termination of the contractual relationship with the GDPR, which does not provide for this mechanics and, as an EU norm of direct applicability, should prevail. It will be curious to understand whether this issue will be brought to the attention of the European Court of Justice and its possible implications.
This topic is extremely hot since the largest GDPR fines in Italy have been issued in relation to telemarketing practices, and on the topic you can read the article “€ 3M GDPR fine for privacy breaches in telemarketing practices in Italy“.