A First-Tier Tribunal decision has clarified the circumstances in which the Information Commissioner can impose monetary penalties on organisations that are found to have targeted consumers with unsolicited marketing communications.
Amber UPVC Fabrications Limited (Amber) had appealed a £50,000 penalty issued in April 2014 after the ICO received reports of over 500 unsolicited marketing calls, many of which were made to Telephone Preference Service (TPS) subscribers.
Agreeing that the ICO was right to impose a monetary penalty, the FTT found that the marketing calls were of a kind that were likely to cause "substantial distress" to the recipients, thus triggering the statutory threshold for imposing a monetary penalty.
In its submissions, Amber had relied in part on the Upper-Tier Tribunal's decision in ICO v Niebel where a £300,000 fine was overturned on appeal. In that case the UTT had concluded that the breach was not of a kind likely to cause substantial distress, even though millions of unwanted spam text messages had been sent out.
The Niebel decision had been criticised by privacy groups for its leniency and led to the government consulting on whether the statutory threshold for issuing monetary penalties in the case of privacy breaches should be lowered or abolished.
However, comparisons with the Niebel case were dismissed by the FTT. In confirming the £50,000 penalty, it said "when hundreds of people who are registered with TPS receive unsolicited marketing calls, there is a very significant and weighty chance of substantial distress being caused".
Live calls v text messages
It appears the key distinction between the Niebel and Amber cases lies in the method of communication used. The FTT said that while spam text messages can certainly be annoying, they can also be ignored or deleted if the recipient chooses to do so. Live telephone calls on the other hand involve an element of direct human interaction, causing an instant intrusion which demands attention. The FTT said this was more likely to result in substantial distress in certain cases, particularly when hundreds of calls were made to individuals who were TPS subscribers.
The judgment suggests that live marketing calls are seen as inherently more serious than spam text messages, and are therefore more likely to lead to a monetary penalty from the ICO.
The Amber case also raised the issue of caller consent to marketing communications. Amber had relied partly on the fact that it had obtained consent to make the sales calls through the use of its marketing lead cards. However, the company's lead card system was criticised by the court as being inadequate. It said the system was confusing and that individuals may not have known they were consenting to receive marketing calls. For example, interest expressed by a consumer in a certain product was sometimes incorrectly interpreted as unqualified consent to receive general marketing calls.
The FTT's findings reflect the recently published recommendations of the Nuisance Calls and Texts Task Force, which is concerned that consumers are often being confused or misled by requests for their consent to receive marketing communications.
It will always be a risk to rely on consent in cases where the individual is registered with TPS.
The Amber case clearly shows the risks involved for companies that make live marketing calls to consumers without first ensuring that they have valid consent, or that the numbers are not TPS-subscribed.
This case, together with the recent Nuisance Calls and Texts Task Force recommendations, underlines the fact that nuisance calls and texts remain a high priority area for the government, consumer bodies and the ICO, which increases the risk of enforcement action being taken.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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