Reactiv Media Limited v The Information Commissioner (Privacy & Electronic Communications Regulations (2003)  UKFTT 2014_0213 (GRC) (13 April 2015) – read judgment
Although an individual’s right to privacy is usually thought of in the context of state intrusion in one form or another, in reality the real threat of intrusion in a society such as ours comes from unsolicited marketing calls.
What many people may not be aware of is that if an individual has registered with the Telephone Preference Service, these calls are unlawful and the company responsible may be fined. It is therefore worth making a complaint, even if one instinctively feels that taking such a step will invite more intrusion. This case is a nice illustration of privacy being upheld and the rules enforced against an unscrupulous and persistent offender.
TPS is operated on behalf of the direct marketing industry by the Direct Marketing Association (DPA) and subscribers’ rights not to receive such calls may be enforced under Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Legal and Factual Background
Between 13 November 2012 and 31 December 2013 TPS received 481 complaints from persons registered with them who had received direct marketing calls from Reactiv – each call was a breach of the regulations. The majority of these calls were made in spite of the fact that the DPA had found Reactiv to be in breach of the regulations in April 2013.
In July 2014 the Commissioner found that Reactiv had made 601 direct marketing unsolicited calls to subscribers who had been registered with TPS and who had not given consent to receive the calls. These included two examples of repeated calls on the same day to disabled persons, a call to the work mobile telephone of a 999 centre operator and one call to a complainant’s mother, who has dementia.
The Commissioner decided that a penalty of £50,000 should be imposed. On their appeal against this fine, Reactiv argued that a good proportion of the calls had not been theirs, and denied that they had caused “substantial damage or distress to individuals”.
They submitted, in particular, that
The company offered a service to the public, it had a right to trade, it was trading well in an area of high unemployment.
These and other arguments were rejected. The Commissioner drew the Tribunal’s attention to the aggravating factor of continuing calls made after Reactiv had been made aware of TMA’s findings against them, when it had
stonewalled the investigation and failed to engage with the Commissioner and had come to the Tribunal asserting that it had resolved the issues but not provided evidence.
The Commissioner also submitted that a penalty of £50,000 was too lenient for a company with an annual turnover of nearly six million pounds.
The Tribunal’s Decision
The Tribunal found the evidence “overwhelming” that the company carried on its business “in conscious disregard of its obligations”. In view of the financial robustness of the company and the aggravating factors in the case, “a culture of denial… weak governance of the company and a tendency to blame others rather than accept responsibility” the penalty originally imposed by the Commissioner was raised by 50% to £75,000.
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