A £300,000 penalty issued by the Information Commissioner (ICO) against a Mr Niebel for sending unwanted text messages ‘on an industrial scale’ has been cancelled on appeal.
Hundreds of thousands of messages were sent from hundreds of unregistered sim cards seeking out potential claims for mis-selling of PPI loans or for accidents. And there was no evidence to show that he made any effort to make sure that the recipients consented or that he retained any record of consents. He did not even bother to register with the ICO under the Data Protection Act (DPA) as a controller of data.
Under the regulations in place since 26 May 2011 the ICO can impose fines of up to £500,000. But the regulations say the contravention must be serious. It must also be “of a kind likely to cause substantial damage or substantial distress”.
The fine imposed by the ICO covered messages sent before and after these new regulations came into effect. In fact only 286 of the messages were sent after 26 May, a tiny proportion of the total.
In his judgement, Judge NJ Warren said that the effect of the contravention was likely to be widespread irritation but not widespread distress. “Given the scale of the contravention, there is the possibility of some distress in very unusual circumstances but we cannot construct a logical likelihood of substantial distress as a result of the contravention. We conclude that the contravention is not of a kind likely to cause substantial distress. “ So he cancelled the penalty notice.
Even if it does not cause distress, spamming is still illegal and you need to be sure to obey the rules if you want to send out marketing material. Direct email marketing to consumers is acceptable if the sender has “obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient”, where the marketing is for “similar products and services only” and providing the recipient can easily unsubscribe so as to refuse the use of their contact details for that marketing in future.