The UK Government has expressly recognised the call by the UK Information Commissioner’s Office (ICO) for a change in UK law to enable it to issue fines against companies that make 100s rather than 1000s of nuisance calls (cold calls from companies trying to sell goods or services).
The ICO is the UK’s regulator of data privacy matters. Currently, it can fine businesses up to £500,000 for making unwanted or ‘nuisance’ calls to individuals, without their consent, in breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECRs). However, in order to warrant a fine, a breach must be “serious” and “of a kind likely to cause substantial damage or substantial distress.” The ICO wants the law to be changed to reduce the legal threshold so fines could be imposed for calls that cause annoyance or nuisance. Currently, the law allows the ICO to fine only organisations that make 1000s of calls, but research shows that the problem of nuisance calls is caused by a large number of companies making 100s rather than 1000s of calls. However, these companies fall outside the fines regime. Recently, a £300,000 fine issued by the ICO against a company responsible for sending 100,000s of marketing text messages was overturned because only a small proportion (around 286) had been sent since the introduction of the ICO’s power to fine. It was found that this small number failed to meet the threshold for a fine. Read more about the Niebel/Tetrus decision.
The need to examine a possible reduction in the threshold for fines was acknowledged by a UK Government representative on 8 November 2013 during the reading of a new draft privacy law (the Unsolicited Telephone Communications Bill 2013/14 – we have previously blogged on this, see the blog on the shake up of direct marketing in the UK by Carlton Daniel. The Government representative said:
“We are also actively considering the scope to legislate to lower the legal threshold the ICO needs to demonstrate before issuing a monetary penalty [for nuisance calls]” …. “We are assessing the business case and the costs before we take action on this.”
Any change in the law would have implications for businesses that carry out any marketing in the UK by telephone or text message, whether UK or non-UK based. They would have to ensure compliance with the PECRs or risk being subject to a fine.