By Simon Entwisle, ICO Director of Operations.
There has been no let-up in our pursuit of those responsible for nuisance calls and texts. Since I last blogged on this issue we have had some notable successes. The penalty and enforcement notice issued to Amber Windows today means that we have now issued fines totalling over £1,000,000 in the last year against some of the worst offenders.
Our office has also seen a decline in the number of reports made to our office since a peak in March 2013. However, while the number of nuisance calls being made appears to be reducing, this is still a developing area of the law and we recognise the challenges this represents to our work.
In September last year, two of the first penalties we issued to the owners of a company called Tetrus Telecoms were overturned on appeal. The tribunal judge ruled that while the spam texts were being sent out ‘on an industrial scale’, it was highly unlikely that this resulted in substantial harm or substantial distress to the recipients. This was a significant decision, as the existing legal bar requires us to meet this condition in order to use our penalty powers.
We’re in the processes of appealing this decision and while this has not stopped us issuing penalties, it has created renewed vigour in our efforts to change the law.
Last year, we provided the government with a business case to make our monetary penalties more effective. These calls and texts are annoying and a nuisance, and we believe that showing that should be sufficient to let us consider a fine. We very much welcome the publication of the government’s nuisance calls action plan earlier this week, with a consultation on lowering the threshold set to take place later in the year. We must avoid any further delay.
While we await this change to the law, we are not only continuing to use our existing penalty powers, but also looking at other ways to deter and ultimately punish companies that we find to be recklessly and knowingly breaking the law.
One of the options that we have been increasingly exploring is our power to issue companies with an enforcement notice. The notice is a legal order that, if breached, can lead to the criminal prosecution of a company’s owner.
Just last month, we issued two companies – Isisbyte Limited and SLM Connect Limited – with enforcement notices after discovering that both companies were responsible for making nuisance calls, while giving out false information in order to hide their identity.
While the level of complaints against both companies currently remains too low for us to issue monetary penalties, ordering them to improve their practices with an enforcement notice places their owners in the firing line and still leaves us with an option to fine them at a later date if they continue to break the law and we can prove their actions are causing substantial damage and distress.
Another approach we are adopting is the active pursuit and prosecution of marketing companies that have failed to register their processing of personal information with our office. Registration is a legal requirement under the Data Protection Act. Prosecuting marketing companies in this way not only punishes them for failing to meet their legal requirements, but also shows that the company is firmly on our radar and we will be taking a keen interest in their wider marketing activities.
Much of this work is only possible thanks to the concerns sent into to us by the public using the online reporting tool on our website. We would urge anyone who has received a nuisance call or text to send us the details using the tool and we can then monitor the worst offenders and take action as required.
Last updated 03/04/2014 10:00
|Simon Entwisle is responsible for all the ICO’s operational functions, including Customer Contact, Case Resolution, Enforcement and Good Practice as well as the Assistant Commissioners in Wales, Scotland and Northern Ireland.|