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Summary of Monetary Penalty Notices in March 2015

Direct Assist Limited (26 March 2015)

Fine: £80,000

Breach: Serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). In particular, using a public electronic communications services to make unsolicited calls for the purpose of direct marketing contrary to Reg 21(1)(b) PECR. The contravention was of a kind likely to cause substantial damage and distress (Section 55A (1) of the Data Protection Act 1998 as adopted by the PECR under Reg 31 and Schedule 1).

Background: Direct marketing calls cannot be made to consumers registered with the Telephone Preference Service Limited (TPS), unless the company has the consumer’s consent or that consumer has been on the register less than 28 days (Regs 21(1)(b), 21(3) and 21(4) PECR). In order to know which consumers are registered with TPS, the company must be registered with TPS.

In October 2003, the ICO and TPS received 227 complaints in relation to the failure by Direct Assist to comply with the PECR.

The ICO had to make several requests for information due to the partial responses from Direct Assist. When asked for an explanation for the number of complaints, Direct Assist stated that there were other organisations using its name without authority, that they relied on opt-in data purchased from third parties and that human error may have resulted in second calls being made to some of the complainants. Direct Assist only purchased ad hoc licences from TPS lasting 30 days each in December 2013 and June 2014, accessing the database once during each licence.

The ICO stated that it would monitor Direct Assist. Between 1 January 2013 and 31 July 2014, the ICO and TPS received a total of 801 complaints.

Analysis by ICO:

The ICO considered, amongst other factors, that:

  • the breach was sufficiently serious because of the number of breaches over a long period of time which led to a large number of complaints; and
  • the cumulative effect meant that the overall level of distress caused was substantial distress even if this could not be said about every individual case but that substantial damage or distress was actually caused in some cases.

The ICO took into account further aggravating features such as:

  • Direct Assist continuing to call after being informed that the recipient did not want to receive the calls;
  • Direct Assist withholding numbers;
  • Direct Assist only engaged in limited way in response to the ICO, and failed to change its practices;
  • Some of the calls being rude and aggressive; and
  • If the PECR was not complied with, Direct Assist could have an unfair advantage over its competitors.

By way of mitigation, the ICO considered that Direct Assist may have believed the numbers purchased from a third party had been screened. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 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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