Who: The Department for Culture, Media & Sport
When: probably 6 April 2015
Where: Whitehall
Law stated as at: 9 February 2015
What happened:
Sources close to the DCMS have indicated that Government Ministers will likely come good on their promise to see to it that before the General Election on 7 May 2015, we will see an end to the “substantial damage or substantial distress” threshold for ICO monetary penalty notices (“MPNs”) of up to £500,000 for nuisance calls and other breaches of the Privacy and Electric Communications Regulations 2003 (“PCRs”).
This follows the increasing clamour for something to be done about the rising tide of nuisance calls and spam promoting ppi mis-selling claims handling services and Government “Green Deal” benefits to name but two.
A lowering of the threshold was proposed in an October 2014 DCMS consultation paper (“Consultation”). The law currently provides that MPNs can only be issued by ICO where:
1. there has been a serious contravention of the PCRs;
2. the contravention was of a kind likely to cause substantial damage or substantial distress; and
3. 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.
The Consultation presented three options:
Option One
Do nothing.
Option Two
Lower threshold #2 to “annoyance, inconvenience or anxiety” and make an appropriate change to threshold #3.
Option Three
Replace thresholds #2 and #3 with a simple need to show that 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.
Curve-ball in the Consultation proposals
A curve-ball in the Consultation proposals was that instead of the change being restricted to nuisance calls and texts as had been anticipated, the change should apply to ALL breaches of the PCRs including for instance non-compliant emails and failure to comply with cookie consent requirements.
6 April sign-off date now likely
The Consultation period expired on 7 December 2014. At that time Government Ministers Simon Hughes and Ed Vaizey made it clear that they would make it a priority to get the change on the statute books before the General Election.
It now seems that they are likely to come good on their assurance. Sources close to the DCMS have indicated that they are looking at 6 April 2015 as the date on which the change will be made official.
Why this matters:
It is not yet clear whether Option #1 or Option #2 will be chosen, whether the change will indeed apply to all breaches of the CPRs and when the change will actually come into force.
However, the move will doubtless please ICO and make it all the more important for marketers to review their marketing practices for CPR compliance.
