Companies that fail to check their mailing lists against deceased suppression files could soon find themselves being forced to cough up compensation payments to bereaved relatives if a new legal challenge wins the day.
The case in question actually dates back to 2018, when a bereaved mother received a letter from Manchester City Council, asking her to register her son for a place at a local primary school, even though he had died three years earlier.
The woman, who has not been named, was still receiving bereavement counselling when she got the missive and claimed it caused upset and distress and therefore amounted to a breach of her legal rights.
The blunder was first reported by the Manchester Evening News when a separate mother told how she had been sent a school application reminder for her daughter, two years after she had died. In total, it is claimed that letters were sent to almost 100 families who had lost their children.
Those affected by the issue said the council had “rubbed salt into the wound” after they received an “impersonal and rushed” apology letter from the council’s director of children’s services, Paul Marshall. The apology was addressed “dear parent” and did not use the child’s name.
The local authority has since admitted the letters had been sent in error but has insisted it did not infringe data protection legislation, even though “data accuracy” is one of the seven principles of GDPR. The apology acknowledged that parents had been caused distress, adding that an internal investigation had concluded that staff had “missed a vital stage in checking this information and therefore a number of letters were sent out in error”.
But Nick McAleenan, a partner at JMW Solicitors who is representing the plaintiff, insisted the authority’s failure to properly explain or apologise for its mistake had “added insult to injury”.
He told Manchester Evening News: “The council’s error had serious emotional consequences for my client and probably for many of the other parents who received these registration letters.
“The authority’s action was careless and insensitive but – importantly – also breached the parents’ data rights. The council has already conceded that it did not perform relatively basic checks on the information before sending the letters out.
“The upset caused by that initial mistake has been compounded by officials arguing that they acted within the rules because they were using the data of the deceased children. In fact, they clearly wrote to the children’s parents asking them to act.
“My client has given Manchester City Council a number of opportunities to amicably resolve what seems to be a fairly clear-cut issue, something which it says it is unwilling to do.”
He said the council now maintained that it had guidance from the Information Commissioner’s Office that it had not breached data law.
McAleenan continued: “Despite our requests, the local authority has consistently failed to provide us with a copy of its correspondence with the ICO on this issue. That’s relevant because we believe that the ICO has only had a chance to consider the material sent to it by the city council and not by the families involved. Had it spoken to them, I doubt that it would have reached such a conclusion.
“We believe that the authority’s conduct fell well short of legal data processing under data legislation. Its actions weren’t fair to the parents and showed a lack of respect which has caused entirely avoidable distress.
“The law clearly sets out how such conduct and the damage caused leave the way open for these individuals to claim compensation. My client recognises that she may have to go to court in order to hold the council responsible.
A spokesperson for Manchester City Council said: “We apologised unreservedly at the time for the distress caused by this letter, and reviewed all our systems to make sure this could not happen again. It would be inappropriate for us to comment on any legal matters arising from this.”
In response, Mortascreen product director Patrick Lymath commented: “As marketers, we’ve long known the negative impact of accidentally sending a direct mail pack to someone who has passed away. Not only does it cause undue stress and upset to the bereaved, it can also significantly damage the brand affecting the bottom line.
“These are bad enough; however, the outcome of this case, could mean that mailing the deceased becomes even more costly. JMW Solicitors believes the authority’s conduct fell well short of legal data processing under data legislation and is using the council’s breach of GDPR as grounds for compensation.
“If this case finds in favour of the claimant, it is likely that moving forwards more legal action will follow from the bereaved, meaning that mailing the deceased will not only result in brand damage but could also cost thousands in compensation, too.”
According to Wilmington Millennium, tens of millions of mailings are still sent to the deceased every year, and hit a new record in 2017, reaching over 200 million.
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