Tag Archives: Electronic Marketing

Data Protection/Privacy Enforcement: January 2018

It has been a busy start to the year for the Information Commissioner’s Office (ICO).  The start of 2018 also saw the highest ever sentences imposed on those in breach of Data Protection and Privacy laws in the United Kingdom.  It is time to have a closer look at the Data Protection and Privacy Enforcement action published by the ICO during January 2018 as part of our regular monthly review.  You can read our review of the privacy and data protection enfrocement from December 2017 here.

Key Points

  • If you have access to personal data as part of your employment, ensure that you only access it where there is a genuine professional need for you to do so; even if the reason you are looking for information could be considered harmless.
  • As far as the Information Commissioner is concerned, ‘ignorance is not bliss’; Data Controllers must have adequate and up to date procedures, technology and policies in place to ensure that they are not in breach of any data protection laws or regulations.
  • Organisations can’t generally send advertising or marketing emails unless the recipient has informed the sender that they consent to such emails being sent by, or at the instigation of, that sender.  Any consent must be freely given, explicit and informed but also involve a positive indication signifying the individual’s agreement. In order for consent to be informed by an individual, the individual must know exactly what it is they are consenting to (for more information see Alistair Sloan’s blog post PECR:  The forgotten relative).
  • Failure to notify the Information Commissioner of any personal data breach in accordance with the Notification Regulations will not be tolerated.  If it has come to your attention that there has been a breach, you must come clean and put your hands up. A much wider requirement to notify the ICO of personal data breaches becomes applicable with the GDPR later this year, for more on that see our blog post on Personal Data Breaches under the GDPR.
  • It goes without saying, meticulous attention to detail must be taken when you are sending any correspondence containing personal data, you must ensure that it is sent to the correct person.

Enforcement action published by the ICO in January 2018

The Carphone Warehouse Ltd
The Carphone Warehouse Ltd was served with a Monetary Penalty Notice in the sum of £400,000 after serious failures and inadequate software placed customer and employee data at risk.

Newday Limited
Newday Ltd were served a Monetary Penalty Notice in the sum of £230,000 after approximately 48,096,988 emails were sent to individuals who had not consented to receive marketing, contrary to regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The Commissioner decided that the consent relied on by Newday Limited was not sufficiently informed and therefore it did not amount to valid consent.

TFLI Ltd
TFLI Ltd received a Monetary Penalty Notice of £80,000.  This penalty was also in relation to contravention of regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  TFLI Limited sent approximately 1,218,436 unsolicited marketing texts promoting a loan website.

Barrington Claims Ltd
Barrington Claims Ltd were issued a Monetary Penalty Notice in the sum £250,000 after they failed to ensure automated marketing calls were made only to individuals who had consented to receive them. The Commissioner decided to issue a Monetary Penalty under section 55A of the Data Protection Act 1998, in relation to contravention of regulations 19 and 24 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The company were unable to provide evidence that it had the consent of individuals to whom it had instigated the calls.

Goody Market UK Ltd
Goody Market UK Ltd were issued a Monetary Penalty Notice in the sum of £40,000 after they failed to ensure that text messages containing marketing material were only sent to individuals who had consented to receive them.  They were also served an Enforcement Notice. The texts were sent on the basis of data sourced from a third party, and purchased on behalf of Goody Market UK Ltd by a data broker.  Goody Market UK Ltd were unable to provide the Commissioner with any evidence that the recipients consented to the marketing messages, having relied on verbal assurance from the data broker.  The Commissioner found that Goody Market UK Ltd had contravened Regulation 22 of PECR.

West Midlands Police
West Midlands Police have signed an Undertaking to comply with the Data Protection Act after the Information Commissioner was informed that a data breach had occurred in relation a Criminal Behaviour Order.  The order was imposed on two individuals, but in a leaflet distributed to publicise the order, the names of the witnesses were revealed.

Miss-sold Products UK Ltd
Miss-sold Products UK Ltd were served a Monetary Penalty Notice in the sum of £350,000 after they failed to ensure that marketing calls were only made to individuals who had consented to receive marketing. The penalty was in relation to contravention of Regulation 19 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

SSE Energy Supply Ltd
SSE Energy Supply Ltd was issued a Monetary Penalty Notice of £1,000 after they sent an email to an individual in error.   The penalty was issued because of contravention of Regulation 5A of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  This Regulation requires that a provider of a public electronic communications service must notify the Information Commissioner of a personal data breach without undue delay.  SSE Energy Supply Ltd sent an email to the wrong email address, disclosing the name of a customer and their account number.  After they became aware of the breach, SSE Energy Supply Limited did not follow its policies and procedures that were in place and as a consequence there was a delay in reporting the personal data breach to the Information Commissioner.

Prosecutions
There were a number of successful prosecutions reported by the ICO during January 2018:

  1. An investigation by the ICO, which began in 2013, resulted in record fines for Woodgate and Clark Ltd, the company director and private investigators who were involved in the illegal trade of personal information.  A claim had been made on an insurance policy in relation to a fire at business premises which the claimant owned.  Private investigators unlawfully obtained confidential financial information and disclosed it to Woodgate and Clark Ltd, which then disclosed it to an insurer client.  The defendants were all prosecuted under s55 of the Data Protection Act 1998.  Woodgate and Clark Ltd were fined £50,000 in addition to being ordered to pay £20,000 in costs.  The company director was fined £75,000 and was ordered to pay £20,000 in costs; while both private investigators were fined £10,000 and ordered to pay £2,500 in costs.
  2. A director of an accident claims company invented a car crash so that he could trace and get in touch with the owner of a private number plate he wanted to buy.  He was prosecuted at Bristol Magistrates’ Court for a breach of S55 of the Data Protection Act 1998 for the offence of unlawfully obtaining personal data.  He was convicted and received a fine of £335.00.  The defendant was also ordered to pay prosecution costs of £364.08 and a victim surcharge of £33.00.
  3. An individual was charged with two offences of unlawfully disclosing personal data.  The defendant had come into possession of a USB stick and published sensitive police information from it on Twitter.  He was sentenced to a 12 month conditional discharg,e in part because he had been placed on a stringent bail conditions including wearing an electronic tag before the hearing.  He had to pay £150 in cost and £15 victim charge.

Vicki Macleod Folan

If you require advice and assistance in connection with any of the issues above, or any other Information Law matter, please do contact Alistair Sloan on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send him an E-mail directly.

PECR: The forgotten relative

Much of the focus in relation to data protection and privacy law is on implementation of the Genera Data Protection Regulation, which becomes applicable from 25 May 2018.  However, many of the discussions that are taking place in respect of GDPR implementation are forgetting the GDPR’s older cousin:  the snappily named Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).  This Directive from the European Union dating from 2002 was implemented in the United Kingdom through the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).

 The Directive on privacy and electronic communications is concerned with the processing of personal data and the protection of privacy in the electronic communications sector and is of importance to telecommunications providers, Internet Service Providers and any person or organisation who conducts direct marketing by electronic means; however, this blog post is concerned only with direct marketing and is a follow-up to my recent blog post on whether consent is required under the GDPR.

The GDPR might be the big thing at the moment, but it is important not to consider it in isolation.  When thinking about GDPR implementation it is necessary to take a holistic view and think about how it interacts with other laws because these other laws don’t stop having effect just because of the GDPR.  Therefore, it is essential to consider how these other laws affect your GDPR implementation.

The rules on direct marketing by electronic means are relatively simple and straightforward, but this does not stop unlawful behaviour from taking place on an industrial scale.  Rarely does a month go past without the Information Commissioner’s Office publishing information on enforcement action it has taken against businesses arising out of failing to comply with PECR, especially since the law changed to lower the legal threshold for Monetary Penalty Notices in relation to PECR infringements.

Electronic Mail
Electronic Mail includes E-mail and SMS text messaging.  The general rule for direct marketing by electronic mail is that you need consent, as defined by the 1995 Data Protection Directive.  This means that you must have a freely given, specific and informed indication that the person to whom you are directing the marketing wants to receive such marketing.

There is an exception to this which is referred to as the “soft opt-in”.  This applies where you have obtained a person’s personal data “in the course of the sale or negotiations for the sale of a product or service” to them.  You can then send direct marketing to this person, without first gaining their express consent, where you are marketing your own similar products or services.  The data subject must be “given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected”.

Each direct marketing communication that is sent must include a simple means of opt-out of further direct marketing content (and this must be free of charge, except for the costs of transmission of the opt-out).

Telephone:  Automated calls
The rules for direct marketing by telephone are split into automated and unsolicited live telesales calls.  In the case of automated calls with recorded information played when the phone line being called is answered, the subscriber (i.e. the person who has contracted with the telephone service provider) must have notified the caller (or the person instigating the call where the caller is a third party acting on behalf of the instigator) that, for the time being, they consent to receiving such calls.  Again, this requires there to be a freely given, specific and informed indication.  Consent can be withdrawn.

Telephone:  Unsolicited live telesales calls
You do not require consent to make such calls; however, you must not make such calls where the subscriber has notified you that they do not wish to receive such calls, or if the number is registered with the Telephone Preference Service (TPS).  You can call numbers registered with the TPS where the subscriber has consented to receiving calls from you, notwithstanding that the number is registered with the TPS.  Consent can, as always, be withdrawn at a later date.

Fax
Yes, it is still a thing and some people (and indeed whole sectors) still use fax machines.  However, as it is more or less an obsolete technology all I will say on the matter is that PECR regulates the use of fax for direct marketing and the relevant parts are Regulations 20 and 25.

That is a very brief run through of the relevant law as it stands today.  However, a couple of points to note in closing:  Firstly, the EU is currently working on a replacement to the current Directive.  It had been anticipated that the new E-Privacy Regulation would be implemented alongside the GDPR, but work started on it too late and so it won’t.  Whether it will be finalised in and in force prior to Brexit is something that we will need to wait and see.  Secondly, depending on what happens with the Brexit negotiations it may still end up being part of UK law even if it comes into force after the UK leaves the EU.  Thirdly, there is likely to be some temporary adjustments to PECR from 25 May 2018, that is because PECR adopts a lot of definitions from the Data Protection Act 1998 and the 1995 Data Protection Directive (both of which will be repealed on 25 May 2018).  Finally, the domestic Regulations were made under the European Communities Act 1972; therefore the European Union (Withdrawal) Bill may well have some impact upon them.

Alistair Sloan

If you would like advice or assistance with a privacy or data protection matter, or any other information law concern then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.