Watchdog muzzles lawyers to sink teeth into SMS firm

The wisdom of companies hiring expensive lawyers to fight their corner once the Information Commissioner’s Office comes knocking has been called into question after a London marketing firm became the ICO’s latest scalp, despite arguing that it was not responsible for the unlawful activity.
The company in question, Hamilton Digital Solutions, was accused of sending more than 156,000 illegal text messages between April and September 2016. However, the firm claimed the messages had been sent by another company, based in Belize, on its behalf. This company would then text people who had given their consent to be contacted, it insisted.
But the ICO maintained the company’s evidence was insufficient. Yet, instead of accepting its fate, Hamilton Digital hired a legal firm, which argued that the company had not been the instigator of the messages. Lawyers also claimed the ICO could not prove that Hamilton Digital had not obtained consent.
Rejecting the firm’s protestations, the ICO ruled that the company had in fact breached the EU Privacy & Electronic Communications Regulations which state that senders need the permission of the recipients before sending marketing messages.
Earlier this month, Verso Group claimed the regulator had made it virtually impossible for the firm to refute claims that it had made unlawful calls, fuelling concerns that once companies are in the dock with the ICO, they are on “a hiding to nothing”.
Verso insisted it had made the conscious decision not to mount a legal challenge against the ICO’s action as it had already shelled out £150,000 in a successful challenge to a different regulator. Verso was fined £80,000 but this was reduced to £64,000 for an early settlement.
The ICO has now issued £2m in fines across 20 cases since April 2017, and says it expects to impose another £1.4m in the coming months. However, it has no figures on how many of these fines have actually been paid.
The regulator maintains it is chasing directors who try to duck fines by putting their firms into liquidation by working with other bodies such as the Insolvency Service and Claims Management Regulator.
However, so far only one director – Hassim Iqbal of Check Point Claims – has been disqualified by the Insolvency Service for failing to comply with regulations relating to its business. The £250,000 fine for making 17.5 million nuisance calls, levied in May 2016, remains unpaid.
ICO enforcement group manager Andy Curry said: “We will pursue all options in the event of unpaid fines, and this case shows that directors behind nuisance marketing firms cannot get away with the intrusion and annoyance they cause the public.”