Direct Marketing Company Receives £75,000 Penalty for Bombarding People with Nuisance Calls
27 April 2015
Author: Olivia O'Kane
The Information Rights Tribunal has dismissed an appeal by Reactiv Media Limited in respect of a Monetary Penalty Notice (MPN) issued by the Information Commissioner in July 2014 in response to unsolicited direct marketing live telephone calls made by the appellant. Strikingly, the Tribunal not only agreed with the Information Commissioner’s assessment that there was a sufficient breach of Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003, but also saw fit to increase the original penalty from £50,000 to £75,000.
Since the introduction of the Telecommunications (Data Protection and Privacy) Regulations 1999 (now updated by the Privacy and Electronic Communications EC Directive Regulations 2003) it has been unlawful to contact an individual for direct marketing purposes who either has personally objected to being contacted or has registered with the Telephone Preference Service (TPS). The TPS is the official statutory central opt out register and is operated on behalf of the industry by the Direct Marketing Association (DMA).The Direct Marketing Commission (DMC), the body that oversees compliance with the association’s code, has the power to expel a member company if they are found to be in breach of Regulation 21. In addition the Information Commissioner has the power to issue an MPA under section 55A of the Data protection Act 1998 if he is satisfied that a company is in serious breach of Regulation 21 and if the breach is likely to cause substantial damage or substantial distress.
In respect of Reactiv, the Information Commissioner found that the company was in breach of Regulation 21 as evidenced by its continuous calls to individuals registered with the TPS between November 2012 and December 2013. In considering it appropriate to issue an MPN, the Commissioner was satisfied that Reactiv knew or ought to have known of the risk of breach and that it would be likely to cause substantial distress. The likelihood of these calls causing substantial distress was illustrated by two examples of repeated calls on the same day to disabled persons, a call to the work mobile telephone of a 999 centre operator and call causing distress to a dementia sufferer.
In dismissing the appeal by Reactiv against the MPN issued by the Information Commissioner, the Information Rights Tribunal found that there was:
“a culture of denial and minimisation of the breach, weak governance of the company and a tendency to blame others rather than accept responsibility. There is little evidence of robust policies and procedures coupled with a culture which properly respects telephone subscribers and their right to privacy.”
The Tribunal also considered it necessary to increase the penalty to £75,000 taking into account aggravating factors such as Reactiv’s “conscious disregard of its obligations”, as well being provided with a more accurate view of the strength of the financial situation of the company than the Information Commissioner was previously aware of.
Importantly the case demonstrates the need for members of the public to proactively make complaints to the relevant bodies when they are harassed by nuisance calls from direct marketing organisations. The requirement for individuals to complain was acknowledged by the Tribunal in its consideration when it stated:
“The identification of breach of the Regulation requires individuals to complain. They may complain to the TPS or the Commissioner and the complaints are captured in different ways with varying amounts of information gathered from the complainant.”
For more information please contact Olivia O'Kane.