Who: DCMS
When: October 2014
Where: Whitehall
Law stated as at: 13 November 2014
What happened:
Following increasing concerns about “nuisance” calls and texts and growing pressure from the Information Commissioner’s Office, the UK Government in the form of the Department for Culture, Media & Sport has published a proposal to lower the legal threshold for the imposition of Civil Monetary Penalties (“CMP”) under the Privacy and Electronic Communications (EC Directive) Regulations (“PCRs”).
Currently, a CMP of up to £500,000 in respect of a breach of the PCRs can only be issued where:
- there has been a serious contravention of the PCRs; and
- the contravention was of a kind likely to cause substantial damage or substantial distress; and
- the contravention was deliberate or the person knew or ought to have known that there was a risk that the contravention would occur (and that it would be of a kind likely to cause substantial damage or substantial distress) but failed to take reasonable steps to prevent it.
ICO has found that this is a high hurdle. In October 2013, the First Tier Information Rights Tribunal overturned a £440,000 CMP as it considered that the high volume of unsolicited text messages in question was not likely to cause “substantial distress.”
Up to 25 October 2014, ICO had issued six CMPs totalling £675,000 against mobile spammers and nuisance callers. It felt it had been successful in reducing the volume of complaints about the practice. Amongst its leading exponents were promoters of PPI mishandling claim management services. However ICO felt there was still a strong and pressing need for it to be able to issue CMPs without having to demonstrate likely “substantial damage” or “substantial distress.”
The DCMS has heard ICO’s pleas. It has made two alternative proposals for change.
Option One
Retain the three requirements at #1-#3 above but lower the “substantial damage or substantial distress” threshold at #2 and #3 to “annoyance, inconvenience or anxiety”.
Option Two
Change the threshold to the following:
- there has been a serious contravention of the PCRs; and
- either the contravention was deliberate or
- the person knew that there was a risk that the contravention would occur, but failed to take reasonable steps to prevent the contravention.
Of the two, the DCMS favours Option Two.
It believes this would simplify the PCRs and provide the greatest scope for ICO to issue CMPs as part of its enforcement work. The only drawback it identifies applies also to Option One, namely that it would create an expectation that CMPs would be issued by the ICO in many more cases than its resources would permit.
This all looks eminently sensible, but the “sting in the tail” is that although the key driver for this initiative has always been spam texts and nuisance calls and the Proposal itself opens with:
“The staggering number of complaints and the stress and anxiety caused by nuisance calls and text messages, especially to the vulnerable and housebound, is of great concern…..”
the Proposal extends significantly beyond these evils and is proposed to apply to all of Regulations 19-24 of the PCR, applying therefore to all of the following:
- Reg 19 automated recorded calls;
- Reg 20 fax messages;
- Reg 21direct marketing calls-the “nuisance calls” principally targeted;
- Reg 22 marketing texts and marketing email; and
- Reg 23 identification of sender and address in emails and texts; and
- Reg 24 disclosure of information about the person conducting the activity in question or instigating it in the context of Regs 19-21 (i.e for Regs 19 and 20 providing the name of the person and either the address of the person or a telephone number at which he can be reached free of charge and for Reg 21 the name of the person and, if the recipient so requests, either the address of the person or a telephone number at which he can be reached free of charge
Why this matters:
The consultation closes on 7 December 2014, when there can be little doubt that the DCMS’s postbag will be stuffed with loud protests from across the email marketing fraternity that they have been unjustly tarred with the nuisance call and spam text brush and should be expressly excluded. Will the DCMS heed their complaints? It remains to be seen.
