November 13, 2014
Nuisance calls and texts consultation
Plans to lower or remove threshold for ICO to fine those responsible up to £500,000
The law may be changed to make it easier to punish those responsible for nuisance calls, text messages and emails. The Government is consulting on plans to lower or remove the threshold which must be reached before the Information Commissioner’s Office (ICO) can issue fines of up to £500,000 against them.
The consultation is said to be focussed on “live” marketing calls and text messages, but any change to the law would apply across Regulations 19 and 24 of the Privacy and Electronic Communications (EC Directive) Regulations 2003, and so would also apply to unsolicited recorded calls, emails and faxes; as well as to certain other breaches of the Regulations, such as the sender of an electronic marketing message concealing their identity.
The current threshold (under s. 55A Data Protection Act 1998) requires the ICO to prove that the unsolicited direct marketing messages sent in contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 caused “substantial damage or substantial distress”. The Upper Tribunal in IC v Niebel  UKUT 0255 (AAC) upheld the First-Tier Tribunal’s decision to allow Mr Niebel’s appeal against a fine imposed by the ICO. It did so because on the evidence before it (evidence of 286 individuals who had agreed to their information being used in proceedings – it was alleged that Mr Niebel had sent millions of spam texts), the First-Tier Tribunal did not find that there was evidence of substantial damage or substantial distress. The Upper Tribunal acknowledged that this might lead to “a question mark over whether the Commissioner’s powers are in the terms of the Directive “effective” and “dissuasive”, and noted that the statutory test could be lowered by Parliament if it wished to do so. The present consultation appears to be the Government’s response.
The ICO has strongly expressed the view that the current threshold prevents effective enforcement of the law. Nuisance calls and texts are the subject of a high number of complaints from the public, and the current consultation is part of the Government’s “Nuisance Calls Action Plan”.
The Government’s preferred option is to remove the threshold entirely. The alternative option consulted on is to lower the threshold to causing “annoyance, inconvenience or anxiety”. If either change were implemented, the ICO would also still have to show that the contravention of the Regulations was deliberate or that the person knew that there was a risk that the contravention would occur, but failed to take reasonable steps to prevent it.
The consultation is open until 7 December 2014. The full consultation paper and ways to respond can be found here.
A blog from the Information Commissioner on the anticipated impact of the proposed changes can be found here.
A 5RB News Report on the Upper Tribunal decision in Niebel can be found here.