Who: The Information Commissioner’s Office (“ICO”), Trading Standards, Isisbyte Limited (“Isisbyte”), SLM Connect Limited (“SLM”), Dorset County Council, Apple Group Holdings Ltd
Where: UK
When: 10 March 2014 (ICO enforcement notices) and 27 February 2014 (Trading Standards).
Law as stated at: March 2014
What happened:
The UK has recently seen yet more enforcement activity against unsolicited marketing communications.
The ICO has issued enforcement notices against two entities for making unsolicited marketing calls and Trading Standards has taken enforcement action for what is thought to be the very first time against cold callers.
In the case of Isisbyte, the ICO received complaints from the Telephone Preference Service (the “TPS”) and individuals alleging that Isisbyte (according to its website a provider to businesses of mobile phone solutions) made unsolicited marketing calls and that Isisbyte’s name was not provided to data subjects during the call.
The ICO determined that by failing to correctly identify themselves Isisbyte were in breach of regulation 24 (1) of the Privacy and Electronic Communications Regulations 2003 (the “PEC Regs”). Its enforcement notice require the cessation of the activity.
In the case of SLM (a contact centre) both unsolicited marketing calls and unsolicited automated marketing calls were alleged to have been carried out by various individuals acting on behalf of SLM. Again, the ICO found that there was a breach of the PEC Regs and required that SLM ceased making unsolicited marketing calls and automated calls without stating they are made on SLM’s behalf.
Trading Standards powers against cold callers come from Unfair Commercial Practices laws
While the ICO is traditionally the main regulator in the field of unsolicited marketing calls, based on its powers under the PEC Regs, it has only issued four monetary penalty notices in this area in the last 12 months. It is significant, therefore, that Trading Standards has now used its powers in this area for the first time.
Dorset County Council Trading Standards has taken enforcement action against a marketer for breach of the Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”).
The particular CPR provision in play in the action in respect of cold calls was the “always unfair” practice #26 at Schedule 1 consisting of:
“Making persistent and unwanted solicitations by telephone, fax or email or other remote media except in circumstances and to the extent justified to enforce a contractual obligation”.
The prosecution, brought in Weymouth Magistrates’ Court, also dealt with doorstep marketing visits to people’s homes after being requested not to do so.
The defendant was home improvements specialist Apple Group Holdings Ltd (no relation) and the fines imposed totalled £36,663.
The prosecution followed complaints against the company dating back to 2012 which were investigated by Trading Standards officers. Advice had previously been given to the company about necessary changes and it took steps to put improvements in place but this evidently did not save it from this successful prosecution.
Why this matters:
These recent cases highlight that enforcement action against unsolicited marketing communications is becoming a priority. Marketers should also be alert to the fact there is now a risk of enforcement by two active regulators in this field if marketers do not comply with the law.
ICO’s action underlines that the PEC Regs require disclosures to be made by cold callers in the call, whilst the Trading Standards action is by all accounts the first time the “persistent and unwanted marketing” provisions of the PCRs have been used in anger.
The ICO reported its enforcement notices here.
Trading Standards reported the fine against Apple Group Holdings Limited here.
