Government Cracks Down on ‘Nuisance’ Marketing

The Department for Culture, Media and Sport (DCMS) has unveiled a draft proposal to tackle businesses that send spam text messages, make nuisance calls or carry out other types of unsolicited direct electronic marketing activity if their actions cause “annoyance, inconvenience or anxiety”.

The proposals, if implemented, will reduce the legal threshold of harm required for the Information Commissioner’s Office (ICO) to meet to justify addressing business that ignore the Privacy and Electronic Communications Regulations (PECR). Currently, the ICO has the power to issue fines of up to £500,000 against organisations that breach the PECR rules.

Under the proposals, the ICO would be able to issue fines to organisations that breach the PECR guidelines if their unlawful actions were carried our deliberately or with the knowledge that there was a risk that a breach causing “annoyance, inconvenience or anxiety” would occur.

The organisation may refute these allegations by proving that they had taken “reasonable steps to prevent the contravention”.

DCMS stated in its consultation paper that they desire to make it easier for the regulator to take robust action against any organisation that acts unlawfully and believe that a lower threshold will send a strong signal to those that are currently breaking the rules.

In evidence that the current threshold is hampering ICO’s effectiveness in this area, the regulator previously lost a legal battle over the highest fine it had issued, overturning the charge due to not being able to meet lost evidential requirements.

The regulator is currently investigating 35 organisations over PECR violations and would welcome the ability to more effectively bring forth prosecutions.