The Information Commissioner’s Office (ICO) has lost its appeal against a decision to overturn a £300,000 fine slapped on Tetrus Telecoms director Christopher Niebel for sending millions of unsolicited texts.
An upper tribunal backed a lower tribunal’s ruling in 2013 that the ICO had not shown that the man’s sending of unsolicited direct marketing had met the legal threshold for serving fines.
Neibel’s original appeal was seen as a major body blow to the ICO’s crackdown on rogue text marketing and has in part been responsible for Government plans to change the law by lowering the threshold of complaints needed to issue a fine.
Since the ruling, the ICO has admitted it is virtually powerless to take action against businesses in breach of the Privacy & Electronic Communications Regulations because of the need to build such a weight of evidence to justify serving a fine.
Under PECR, the ICO can fine businesses and other organisations up to £500,000 for serious breaches of the rules, including the sending of unwanted marketing emails and texts or live and automated marketing phone calls to individuals.
However, it must prove that their actions are “likely to cause substantial damage or substantial distress”. Sitting at the Information Rights Tribunal, the judge in the original case – Mr Justice Warren – said: “In our judgement the effect of the contravention is likely to be widespread irritation but not widespread distress.”
Earlier this month, Government sources claimed new legislation which lowers the threshold of complaints should be passed before Christmas.
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. It is unlikely that McNeish will have to pay his portion either.
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