Regulator fines and bans marketer for sending unsolicited texts

PhonepayPlus, the UK's PRS regulator, also issued Wild ACE Marketing Limited (Wild) with a £9,000 fine for sending the messages on 28 and 31 January this year. Wild charged consumers to receive messages containing "offers n freebies" but customers complained about the service to PhonepayPlus, a spokesperson for the regulator told Out-Law.com.

The regulator said the company's activities had been in breach of the law and aspects of its Code of Practice.

Under the UK's Privacy and Electronic Communications Regulations it is generally prohibited for an organisation to transmit or instigate the transmission of unsolicited communications for the purposes of direct marketing by means of electronic mail unless the person receiving the mail has notified prior consent for the messages to be sent.

The PhonepayPlus Code of Practice contains a rule that requires PRS providers and their promotional material to "comply with the law". "They must not contain anything which is in breach of the law, nor omit anything which the law requires. Services and promotional material must not facilitate or encourage anything which is in any way unlawful," the Code states.

The service provider, mBlox Limited, that gave "technical connectivity" to Wild in order for it to send its texts suspended Wild's service after expressing concern that the marketer had not obtained customers' prior consent, the PhonepayPlus spokesperson said. Wild had argued that it had the appropriate consent to send the messages.

In addition to finding that Wild was in breach of the law, PhonepayPlus also ruled that the company had breached its rules on fairness and the provision of information.

Under its Code of Practice PhonepayPlus has a right to demand that providers of PRS hand over "information as it may require for any purpose relating" to the Code "without delay".

Under the fairness rules PRS providers and their promotional material "must not mislead, or be likely to mislead, in any way". Of the two charges Wild faced in relation to this rule only one of the charges was upheld at tribunal.

"The Tribunal found that the [seven] complainants had received unsolicited promotions from [Wild], and accordingly upheld a breach of [the Code's rules on legality]," PhonepayPlus said in a statement.

"The Tribunal also upheld a breach of [the fairness rules] of the Code on one of two alleged grounds, on the basis that one of the messages received by consumers was misleading. The Tribunal further upheld a breach of [the provision of information rules] of the Code on the basis that [Wild] had provided [PhonepayPlus] with false, inaccurate and misleading information in the course of the investigation of this matter. The Tribunal imposed the following sanctions: a formal reprimand, a fine of £9,000, and a prohibition on [Wild] from involvement in, or contracting for, the provision of premium rate services for a period of six months," the regulator said.