TOTAL: {[ getCartTotalCost() | currencyFilter ]} Update cart for total shopping_basket Checkout

The Privacy Advisor | Israel tightens marketing rules with a do not call registry Related reading: DPOs in Israel — An analysis of a regulatory maze




A do not call registry in Israel starts operating early 2023 and joins an already stringent set of consumer privacy protection under Israeli laws. Marketers who call numbers listed in the registry will face significant fines and class actions. Israel joins more than 30 other countries with government-operated opt-out lists for marketing calls.

Opt out of marketing calls

In December 2020, the Consumer Protection and Fair Trade Authority imposed an NIS 8.3 million (about US$2.5 million) fine on a telemarketing company for exploiting consumers, particularly elderly. The imposed fine marked a significant milestone in the effort to tackle unlawful activities through marketing calls.

Thereafter, the Israeli government initiated a statutory shift toward limiting marketing calls, much like it did in 2007 with the enactment of an amendment to the Telecommunications Law that introduced one of the strictest spam laws worldwide. On Nov. 24, 2020, Israel’s Parliament, the Knesset, enacted Amendment No. 61 to the Consumer Protection Law, 5741-1981. The amendment adds a do not call registry to the law and directs the CPFT Authority to establish and manage the registry.

On June 30, the Economic Affair Committee of the Knesset approved regulations to roll out the registry, which will be effective as of Jan. 1, 2023. The CFPT Authority has already indicated that the registry will be operational in early November this year.

Israel joins more than 30 other countries, including Australia, Canada, Ireland, Italy, Mexico, New Zealand, Singapore, the U.K. and the U.S. in limiting marketing calls with governmental opt-out registries.

Formally titled a “Registry for Limiting Marketing Messages,” the registry is aimed at preventing the exploitation of vulnerable populations through marketing calls. The new law, however, has a much broader scope. The CPFT Authority will establish and manage a registry in which all consumers may register their phone numbers to avoid receiving marketing calls from businesses.

A consumer may request that one or more phone numbers be registered and may further request to change or remove the registered numbers from the registry. The regulations under the new law establish three options to opt out: a dedicated phone number, an online form and an additional digital measure, published in the CPFT Authority at a later stage.

Businesses may not make marketing calls to a registered number, including to convince consumers to remove their phone numbers from the registry. The amendment puts the burden on businesses to scrub their contacts list against the registry. Businesses may also need to pay fees to query the registry’s database, pursuant to any future governmental orders.

Exemptions to the prohibition on calling numbers registered in the do not call registry include a call made by a business following a consumer’s request for the business to call the consumer and when a consumer provides written consent to be contacted via a call.

What is a 'marketing call?'

The new law defines a “marketing call” as a call made to a consumer’s phone number to engage in a transaction, either during the call or at a later date. The definition covers an offer to receive an asset or a service without consideration, under a discount or by providing a benefit. The broad definition is clearly aimed at envisioning a range of marketing approaches to convince consumers to enter into contracts, while taking into consideration the leverage that marketers may have over consumers in understanding the full scope of the contract terms.

The new law further provides that a “marketing call” includes calls made through electronic communication and seems intended to cover calls made through Voice over Internet Protocol networks and instant messaging applications, such as WhatsApp, Telegram and Signal. As the law fails to indicate explicitly that it regulates voice calls only, marketing text messages through IM apps may also be considered as covered. This is likely a matter for future interpretation by courts.

The risk: Fines and class actions

The amendment grants the CPFT Authority the power to impose a NIS 46,080 (approximately US$13,700) fine per violation. A single marketing call to a phone number listed in the registry constitutes a violation. The CPFT Authority can also impose 1.5 times the above fines if the violation relates to a significant number of consumers (“aggravated circumstances"). Accordingly, marketers that disregard the registry and call listed phone numbers may face significant fines.

Additionally, consumer protection class actions are quite common in Israel. An action under Class Actions Law 5766-2006 can be filed against any business in connection with a matter between the business and a consumer, regardless of whether they are engaged in a transaction or not. As a marketing call fits the description, violations of the new law will likely set grounds for future class actions.

Businesses usually outsource marketing calls to inbound and outbound telemarketing services. Under the law, businesses are held fully liable for any violations committed by their service providers, thereby requiring businesses to ensure that their telemarketers properly scrub their lists against the do not call registry or else face regulatory and legal action.

The interplay with privacy laws

The amendment does not provide any guidance about businesses’ ability to make commercial calls to non-registered numbers. Presumably, under the Consumer Protection Law, after the amendment takes effect marketers will be allowed to make such calls.

However, in February 2017, Israel’s data protection authority, the Protection of Privacy Authority, published guidelines on the interpretation and implementation of the provisions of the Protection of Privacy Law on direct mailing. Under Protection of Privacy Law 5742-1981, the term “direct mailing" refers to any message sent to individuals based on their being part of a group determined by one or more individuals’ characteristics — in other words, messages sent to individuals based on their profiles. Under the PPL, direct mailing covers the transmission of messages through any type of medium, channel and network, including phone.

Under the PPA guidelines, creating a database for marketing calls requires lawful collection of the data and consent is the only lawful ground for processing, including collecting personal data. Accordingly, regardless of the opt-out regime for the direct mailing activity itself (including marketing calls), companies would still need to receive consent for collecting the data. If this view prevails after the do not call amendment takes effect, then in some cases (i.e., profile-based marketing campaigns), marketers who call non-registered numbers absent opt-in consent would still be at risk of violating the PPL.

The interplay between the Protection of Privacy Law and the new amendment under the Consumer Protection Law will likely stir debate over the right interpretation, and at least until courts deliver their opinions this will create complexities and uncertainty.

Key takeaways

Israel has a three-layered strict statutory regime for restricting the targeting of consumers with marketing messages, based on the privacy, telecommunications and consumer protection laws. Risks associated with violations of these laws are high and should be addressed properly.

A sound marketing strategy will need to address all of the following factors:

  • The lawfulness of the data collection by the company and its data sources.
  • The lawfulness of maintaining a marketing database.
  • The specific rules and limitations related to the relevant marketing channels.
  • The specific rules around the mandatory content in the marketing messages.
  • The management and documentation of an opt-out mechanism.
  • Necessary contractual arrangements with telemarketing services, including the right to monitor and audit their activities.

In light of the strict approach toward consumer privacy under Israeli laws and the significant risks associated with them, companies and organizations that target consumers in Israel should create and implement a marketing strategy that would meet the requirements under the law.


If you want to comment on this post, you need to login.