Ireland is also considering stiffer penalties for
spammers.
4's A Fortune Limited was found guilty of sending
marketing messages to five mobile phones without the consent of the
subscribers – in breach of Ireland's European Communities
(Electronic Communications Networks and Services) (Data Protection
and Privacy) Regulations 2003. The law applies to phone and email
spam.
The company – which describes itself as "Irelands first online
casino-like cash game" – made a total of 165,000 calls, all to O2
customers; but the Commissioner's office is only empowered to
investigate those calls that become the subject of complaints.
The calls were mostly by auto-diallers that hung-up after two
rings. When recipients noticed a missed call on their phones, some
of them called back to the landline number displayed. They were
then put through to a recorded message which encouraged them to
call a premium rate number and play a game to win money.
The rules came into force in Ireland in November 2003 and are
very similar to Regulations that came into force in the UK in
December 2003. They set out restrictions on unsolicited direct
marketing by phone, fax, automated calling systems, email, SMS and
MMS. Cold calling – the making of unsolicited calls without the
prior consent of the recipient or the recipient being an existing
customer – is forbidden.
The investigation into 4's A Fortune took a long time.
It ran from March 2004 to December 2004, according to Senior
Compliance Officer Seán Sweeney. He told OUT-LAW that in any case
of this kind it will take around six months to gather the evidence.
He also expressed sympathy for his counterparts in other European
offices who have not taken action against spammers: it's difficult
to prosecute spammers.
"This was the first case where we've had sufficient evidence to
prosecute," said Sweeney. He explained that in other cases they had
insufficient evidence to remove all reasonable doubt. "With email
it's even more difficult than phone spam," he said. "We reckon we'd
need to seize the terminal equipment to prove who sent the
email."
He did point out that another offence – that of causing an email
to be sent – could be applied to a company that paid for an email
promotion if someone can be shown to profit from the spam; but
proving who sent it is much more difficult.
4's A Fortune Limited faced a potential fine of up to
€3,000 per message sent, but was fined only €300 by the court for
each of the five calls complained of – a total of €1,500. The
company was also ordered to pay costs of €1,000.
Sweeney added, "The judge said she was surprised that no
custodial sentence was available in the Regulations – although she
added that it would not have been appropriate in the circumstances
of this case."
The judge took into account that this was the company's first
offence, that it had ceased its marketing tactic when it became
aware of the Commissioner's investigation, and that it had
eventually cooperated with the Commissioner's office. The company
pled guilty to the offence in July and sentencing took place last
week.
Custodial sentences may come to Ireland. The country's
Department of Communication has expressed support for their
application to spam offences – although Sweeney points out that
this would require the new primary legislation to replace the
existing Regulations, something that would likely take at least two
years.
Sweeney's view is that there is no immediate need to attach a
custodial sentence to spamming offences in Ireland. He says that
complaints have been reducing since the 4's A Fortune
investigation, that marketing companies are showing more awareness
of their obligations.
If that changes in the long term, i.e. if home-grown spam
becomes a bigger problem, it may be necessary to look at custodial
sentences, he suggests.
"The fine against 4's A Fortune was at the low end of
the scale, but it was appropriate. It was a first offence and they
did cooperate at a fairly early stage," said Sweeney. "I think the
publicity was more damaging to them than the penalty."
In the meantime, it is unlikely that this action signals the
start of a crackdown on Irish spammers. Sweeney is hoping for
technical solutions to spam, not legal solutions.
Where it's home-grown email spam, it's usually been easy to
resolve because it tends to be accidental; a one-off. "These are
not cases that we're likely to take to court," he says. Repeat
offenders would merit a stiffer penalty; but he points out that
most email spam is coming from overseas. The spammers just move to
the countries with laws that suit them – and all the Commissioners
in Europe are powerless to stop that.
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