Unsolicited direct marketing text messages lead to prosecution of Restaurant X [08/04/10]
In July 2008 I received complaints from members of the public regarding marketing text messages that were sent to them by a Dublin based restaurant, Restaurant X. The complainants alleged that they had not consented to the receipt of the text messages. 

My Office investigated the matter as it is an offence for a marketer to send a marketing text message to an individual without prior consent. In the course of our investigation, my Office contacted Restaurant X to ascertain what consent they had to send the messages to the individuals concerned. However, Restaurant X was unable to provide evidence of such consent. It said that some of the telephone numbers used to make reservations had been added to the marketing text messaging field, instead of the reservation field, on its computer system due to human error. It did, however, advise that those numbers were now deleted from the marketing database. 

Unfortunately, one of the individuals concerned continued to receive marketing text messages after this, as his number was not removed from the marketing database as a result of human error. 

I was very surprised that Restaurant X was the subject of complaints about marketing text messages, given that only one year earlier, in July 2007, my Office had investigated several complaints against Restaurant X in relation to direct marketing text messages. Following an investigation of those complaints, my Office found that these complainants had provided their mobile numbers in the context of making a reservation and at no stage in the collection of the numbers was their consent sought to subsequently market them. Following the 2007 investigation, I decided, in line with my normal policy in such matters, to seek to amicably resolve those complaints and not take prosecutions, as these were first offences. By way of amicable resolution, Restaurant X had agreed to delete the database and to review its procedures for the collection, storing and use of mobile numbers. It also made a goodwill gesture of a voucher to each of the complainants. 

In light of the 2007 investigation in relation to a similar issue, I deemed the subject matter of the 2008 complaints to be repeat offences and I therefore decided to bring a prosecution against Restaurant X in relation to four offences which came to my attention.
 
My Office issued four summonses in the Dublin District Court in relation to these offences. These came before the court in June 2009. Company Y, trading as Restaurant X, pleaded guilty to the charges. Following evidence given by my staff, the Judge recorded four convictions against Company Y and imposed a total fine of €3,250.