Enforcement of UK rules on unsolicited marketing to be made easier

The Department for Culture, Media and Sport (DCMS) said that the new regulations, set to take effect from 6 April, will help the ICO in its crackdown against businesses that make nuisance calls or send 'spam' text messages. The ICO welcomed the move.

"The rules around marketing calls have been a licence for spammers and scammers, and people are sick of them," information commissioner Christopher Graham said. "This law change gives consumers the chance to fight back. We still need people to report these calls to us, but now we can use those complaints to better target the companies behind this nuisance."

Currently, the ICO must prove that unsolicited direct electronic marketing causes consumers "substantial damage or substantial distress" to merit it serving businesses responsible for the activity with a monetary penalty.

The change in the law, which comes after DCMS held a consultation on the issue last year, will see the 'substantial damage or substantial distress' legal threshold removed.

To be justified in issuing a fine under the new framework, the ICO will still need to be happy that there has been a serious breach of the Privacy and Electronic Communications Regulations (PECR) and that the breach had either been deliberate or that the person acting in breach knew their actions risked breaking the rules but failed to take reasonable steps to prevent the breach happening.

Digital economy minister Ed Vaizey said: "For far too long companies have bombarded people with unwanted marketing calls and texts, and escaped punishment because they did not cause enough harm. This change will make it easier for the Information Commissioner’s Office to take action against offenders and send a clear message to others that harassing consumers with nuisance calls or texts is just not on."

DCMS said it will also review whether the ICO needs greater powers to hold to account individual board members at businesses that engage in unsolicited marketing activities.

Under PECR, organisations are generally prohibited from transmitting or instigating the transmission of unsolicited electronic communications to consumers for the purposes of direct marketing unless the person receiving those communications has provided prior consent for the messages to be sent. The marketing companies also must not disguise or conceal their identity in the messages or use invalid addresses where recipients of the messages would send responses to ask for the messages to stop being sent.

Companies can send direct marketing via electronic mail to consumers if they have "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", where the marketing is for "similar products and services only" and providing the recipient has a "simple means" to refuse the use of their contact details for that marketing "at the time of each subsequent communication."

The ICO has the power to issue fines of up to £500,000 against organisations that breach the PECR rules. The ICO previously lost a legal battle with a business owner, Christopher Niebel, over a £300,000 fine it had issued him regarding a breach of PECR rules. An information rights tribunal overturned the fine after finding that the ICO had failed to show that the sending of spam text messages that it held Niebel part-responsible for had not caused the recipients of those messages substantial damage or substantial distress.