Help direct-enforcement-notice
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The Information Commissioner issued an enforcement notice to Help Direct UK Limited for contravening regulations around sending direct marketing communications via electronic mail. Between December 2013 and April 2014, over 650 individuals complained about unsolicited marketing text messages sent by Help Direct UK Limited regarding pension plans. The Commissioner determined Help Direct UK Limited violated regulations by sending these messages without prior consent and by concealing their identity as the sender. The enforcement notice requires Help Direct UK Limited to comply with regulations around direct marketing and electronic communications, including obtaining consent and clearly identifying themselves as the sender, within 35 days.
Help direct-enforcement-notice
- 1. 1 DATA PROTECTION ACT 1998 SUPERVISORY POWERS OF THE INFORMATION COMMISSIONER ENFORCEMENT NOTICE DATED 24 February 2015 To: Help Direct UK Limited of: Unit 1A Suite 8 Upper Fforest Way Swansea Enterprise Park Swansea SA6 8PJ 1. The Data Protection Act 1998 (the “Act”) came into force on 1 March 2000 and repealed the Data Protection Act 1984 (the “1984 Act”). By virtue of section 6(1) of the Act, the office of Data Protection Registrar originally established by section 3(1)(a) of the 1984 Act became known as the Data Protection Commissioner. Since 30 January 2001, by virtue of Section 18(1) of the Freedom of Information Act 2000, the Data Protection Commissioner became known instead as the Information Commissioner (the “Commissioner”). 2. The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “Regulations”) came into force on 11 December 2003. 3. Regulation 22 of the Regulations states – “(1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers. (2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
- 2. 2 (3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where- (a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; (b) the direct marketing is in respect of that person’s similar products and services only; and (c) the recipient has been 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, and, where he did not initially refuse the use of the details, at the time of each subsequent communication. (4) ….” 4. Regulation 23 of the Regulations states – “A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail – (a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or …” 5. “Direct marketing” is not defined in the Regulations. By virtue of Regulation 2(2), “direct marketing” is to have the same meaning as in the Act. “Direct marketing” is defined in section 11(3) of the Act as “the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals”. 6. The Act contains enforcement provisions at Part V which are exercisable by the Commissioner. Those provisions are modified and extended for the purposes of the Regulations by Schedule 1 of the Regulations. 7. Section 40(1)(a) of the Act (as extended and modified by the Regulations) provides that if the Commissioner is satisfied that a person has contravened or is contravening any of the
- 3. 3 requirements of the Regulations, he may serve him with an Enforcement Notice requiring him to take within such time as may be specified in the Notice, or to refrain from taking after such time as may be so specified, such steps as are so specified. 8. Regulation 32 of the Regulations provides that either OFCOM or a person aggrieved by an alleged contravention of any of the requirements of the Regulations may request the Commissioner to exercise his enforcement functions in respect of that contravention. The Commissioner may also exercise his enforcement functions in the absence of any such requests. 9. Between 15 December 2013 and 3 April 2014, a total of 659 complaints were made to the Commissioner, or to the 7726 spam text reporting service, from individuals who said that they had received unsolicited marketing text messages in the following terms: “As you have over 10k in your pension, your pension has lost £3219.43 over the last few years, to get back & find out your payout reply REVIEW”. 10. The Commissioner is satisfied that these communications were sent or instigated by Help Direct UK Limited for the purposes of direct marketing. 11. In the circumstances, the Commissioner is satisfied that Help Direct UK Limited has contravened Regulation 22(2) of the Regulations by sending such communications to individual subscribers for direct marketing purposes without their prior consent. 12. The Commissioner is further satisfied that Help Direct UK Limited has contravened Regulation 23 of the Regulations because those communications concealed the identity of the person on whose behalf they were sent. 13. The Commissioner has considered, as he is required to do under section 40(2) of the Act (as extended and modified by the Regulations) when deciding whether to serve an Enforcement Notice, whether any contravention has caused or is likely to cause any person damage. The Commissioner has decided that it is unlikely that actual damage has been caused in this instance.
- 4. 4 In view of the matters referred to above the Commissioner hereby gives notice that, in exercise of his powers under section 40 of the Act, he requires that Help Direct UK Limited shall within 35 days of the date of this Notice: (1) Except in the circumstances referred to in paragraph (3) of Regulation 22 of the Regulations, neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified Help Direct UK Limited that he consents for the time being to such communications being sent by, or at the instigation of Help Direct UK Limited. (2) In accordance with Regulation 23 of the Regulations, neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by electronic mail unless Help Direct UK Limited is clearly identified in the communication as the sender. Right of Appeal 14. There is a right of appeal against this Notice to the First-tier Tribunal (Information Rights), part of the General Regulatory Chamber. Information about appeals is set out in the attached Annex 1. 15. Any Notice of Appeal should be sent so that it is received by the Tribunal within 28 days of the date on which this Notice is sent. Dated the 24th day of February 2015 Signed: …………………………………..... David Smith Deputy Information Commissioner Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF
- 5. 5 ANNEX 1 RIGHTS OF APPEAL AGAINST DECISIONS OF THE COMMISSIONER 1. Section 48 of the Data Protection Act 1998 gives any person upon whom a monetary penalty notice or variation notice has been served a right of appeal to the (First-tier Tribunal) General Regulatory Chamber (the “Tribunal”) against the notice. 2. If you decide to appeal and if the Tribunal considers:- a) that the notice against which the appeal is brought is not in accordance with the law; or b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal will allow the appeal or substitute such other decision as could have been made by the Commissioner. In any other case the Tribunal will dismiss the appeal. 3. You may bring an appeal by serving a notice of appeal on the Tribunal at the following address: GRC & GRP Tribunals PO Box 9300 Arnhem House 31 Waterloo Way Leicester LE1 8DJ a) The notice of appeal should be sent so it is received by the Tribunal within 28 days of the date of the notice. b) If your notice of appeal is late the Tribunal will not admit it unless the Tribunal has extended the time for complying with this rule.
- 6. 6 4. The notice of appeal should state:- a) your name and address/name and address of your representative (if any); b) an address where documents may be sent or delivered to you; c) the name and address of the Information Commissioner; d) details of the decision to which the proceedings relate; e) the result that you are seeking; f) the grounds on which you rely; d) you must provide with the notice of appeal a copy of the monetary penalty notice or variation notice; e) if you have exceeded the time limit mentioned above the notice of appeal must include a request for an extension of time and the reason why the notice of appeal was not provided in time. 5. Before deciding whether or not to appeal you may wish to consult your solicitor or another adviser. At the hearing of an appeal a party may conduct his case himself or may be represented by any person whom he may appoint for that purpose. 6. The statutory provisions concerning appeals to the First-tier Tribunal (General Regulatory Chamber) are contained in sections 48 and 49 of, and Schedule 6 to, the Data Protection Act 1998, and Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (Statutory Instrument 2009 No. 1976 (L.20)).