Fines more likely regarding nuisance callers and spam texters

The Department for Culture, Media and Sport (“DCMS”) announced today that it will be easier for companies making unwanted marketing calls and sending spam texts to be hit with fines of up to £500,000. This takes effect from 6 April 2015.

Currently, the ICO must prove that such calls and spam texts cause ‘substantial damage or distress’ before the ICO can issue a MPN on the offending individual or company. This threshold has led to much frustration for the ICO whereby a number of MPNs imposed for illegally sending spam texts were overturned on appeal.

The ICO had vociferously campaigned for some time for the bar to be lowered.

The DCMS clearly supports the ICO regarding this. In Ed Vaizey’s words, the Government wants to ‘send a clear message to others that harassing consumers with nuisance calls or texts is just not on‘.

In case readers are not aware:

• unsolicited calls, texts and faxes can be reported via the ICO’s online reporting tool;
• mobile phone users can report spam texts to the Mobile Network Operators spam text reporting service by forwarding the messages to 7726 (spelling out SPAM).

Both of the above are a crucial tool in providing the ICO with intelligence enabling the ICO to gauge levels of SPAM texts and marketing calls in breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).

The ICO encourage people who receive SPAM texts and marketing calls in breach of the PECR to report the same to the ICO via such reporting tools.

The change in law is likely to see an increase in the number of fines issued by the ICO for breaches of the PECR. Business’ must therefore be aware of the PECR and how and why they are seeking to communicate with clients or consumers and carefully assess the business need against the potential consequences of getting it wrong.

Nathaniel Lane is a Solicitor in Michelmores’ Technology, Media & Communications team who has an ISEB Certificate in Data Protection.

For further information on this matter or data protection generally, please contact Nathaniel at nathaniel.lane@michelmores.com or on 0207 788 6313.