Freeth Cartwright wins appeal against fine issued to “spam” texting firm

Christopher Niebel v Information Commissioner – 14 October 2013

We have just succeeded in an appeal to the Information Rights Tribunal against a fine of £300,000 issued by the Information Commissioner against one of our clients for a breach of the Privacy and Electronic Communications Regulations (PECR).

PECR governs the way in which text marketing messages can be sent. The fine was the first of its kind for a breach of PECR and it had been issued for texts that were alleged to have breached the regulations.

Key to the outcome of the appeal was whether the contents of the texts sent were of a kind that was likely to cause “substantial damage” or “substantial distress” to the people who received them. The Tribunal found that whilst it was possible that texts of this kind could lead to recipients incurring charges for texting STOP or receiving texts abroad they were unlikely to cause substantial damage. In giving its reasons why it found no likelihood of substantial damage the Tribunal said “it takes a very short time indeed to give a tut of irritation and delete spam messages such as these”.

Similarly the Tribunal found that the texts were not likely to cause substantial distress. In making its decision the Tribunal stated “Almost all mobile phone users, in our judgement, will recognise these texts for what they are”.

I think this is a sensible judgment from the Tribunal.  People may find texts like these mildly irritating but it is another thing altogether to say they caused substantial damage or distress. In this case the contravention was in respect of only 286 texts yet the Information Commissioner issued a fine of £300,000.

I would welcome your views?

To read the judgment click here:http://www.informationtribunal.gov.uk/Public/search.aspx

For more information on whether “spam” texts are legal see my previous blog post:

https://freethsmanchesterbusinessblog.wordpress.com/2013/05/17/spam-texting-is-it-legal/

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