The Information Commissioner’s Office admits its fight against nuisance calls and texts has been dealt a serious body blow after last year’s High Court ruling, which, it says, rendered its powers “redundant”.
The ruling overturned a £440,000 fine for Tetrus Telecoms after lawyers representing company director Christopher Niebel successfully argued the firm’s actions had not caused “‘substantial damage or substantial distress”.
This was despite the fact that Tetrus sent out as many as 840,000 spam texts a day 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.
In a blog post entitled “Regulators need effective powers”, ICO head of enforcement Steve Eckersley admitted the ruling had had a devastating effect on the regulator’s enforcement action “largely rendering our power to issue fines for breaches of PECR involving spam texts redundant”.
He added: “Obviously an unworkable law is a bad one, which is why we are currently arguing for lowering the legal threshold we have to prove before issuing a fine from substantial distress to one of nuisance or simply removing the threshold altogether.
“Last year we submitted our argument to the Government and we are pleased there will be a consultation later this year. But the law moves slowly and we simply cannot wait for legislative changes.”
In the meantime, said Eckersley, the ICO is using its existing powers to hold companies to account and to disrupt their unlawful activities, including issuing “cease-and-desist orders” to those who breach PECR.
It has also worked closely with other regulators and mobile phone operators to gain a better understanding of how personal data is collected, traded and how it is then used by organisations to send texts or make unsolicited calls.
“This has enabled us to begin targeting the organisations ’up-stream’ of the text senders and callers. In May we also executed a search warrant in Birmingham to recover equipment used to send mass texts,” Eckersley added.
It has also prosecuted ten organisations and individuals for non-notification in the past year, some of which have been issued against cold calling and spam text companies.
He concluded: “We are doing all we can to fight the problem but ultimately we need a full spectrum of powers to fulfil our job. The hundreds of thousands of people who have contacted us with their concerns over these calls and texts expect nothing less.”
The DMA has made repeated calls for the Government to fast-track new nuisance call legislation through Parliament, although its demands appear to be falling on deaf ears.
Originally it was claimed the legislation would be on the statute book by Christmas, however, this is now looking highly optimistic.
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