The decision is a major blow to the ICO’s war on text spam and is likely to be greeted with disbelief by the direct marketing industry, which has been fighting hard to rid the industry of rogue companies.
It comes just weeks after Scottish Borders Council also had its fine – of £250,000 – overturned for the same reason, by the same judge, Mr Justice Warren, sitting at the Information Rights Tribunal.
The owners of Tetrus Telecoms, Christopher Niebel and Gary McNeish, had been fined for sending huge volumes – sometimes as many as 840,000 a day – of unsolicited text messages from offices in Stockport and Birmingham for years.
Any replies were then used to generate leads that were sold to other companies; Tetrus made between £7,000 and £8,000 a day, and the owners made hundreds of thousands of pounds in profits during the period.
Niebel was been ordered to pay a penalty of £300,000, while McNeish was fined £140,000.
The ruling states: “The ICO suggests that recipients of the accident claim texts might become concerned for the safety of members of their family or be disturbed by being reminded of a previous accident. Having looked at the wording of the texts, we judge this to be highly unlikely. Almost all mobile phone users, in our judgement, will recognise these texts for what they are. We also regard it as highly unlikely that the texts would evoke distress by raising false expectations of compensation.”
It goes on: “In our judgement the effect of the contravention is 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. Our decision therefore is to cancel the penalty notice.”
Although the case was only brought by Niebel, the ruling is also likely to cover his business partner McNeish.
At the time of issuing the fine, Information Commissioner Christopher Graham said: ““The public have told us that they are distressed and annoyed by the constant bombardment of illegal texts and calls and we are currently cracking down on the companies responsible, using the full force of the law.”
The ICO has pledged to appeal against the ruling.
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