In addition to cases involving prosecutions of companies on foot of marketing text messages, we this year took prosecution proceedings against two individuals for sending unsolicited marketing text messages without including opt-out mechanisms in those messages. This was the first time that we pursued a prosecution in relation to an individual. The case has established an important precedent that Regulation 13 of SI 535 of 2003 (as amended) with regard to unsolicited communications applies not only to marketing companies but also to individuals, acting as data controllers, who are involved in marketing activity.
Company X first came to our attention in March 2008 when a member of the public lodged a complaint about persistent marketing text messages over a period of months. Despite replying to the text messages using the word 'stop,' he continued to receive marketing messages on his mobile phone. He informed the Office that he had no prior knowledge of this entity and that he had not supplied his phone number to it. During our investigation of the complaint we established the identity of the owner of the mobile phone number which was used to send the text messages. We wrote to that individual, informed him of the complaint, explained to him the law which applies to electronic marketing and sought his response. We received a reply soon afterwards indicating that the complainant's phone number had been removed from the marketing database and stating that the sender did not know that an opt-out facility was required in each text message. We then sent a formal warning to the individual that, in the event of any further complaints of this nature, we would consider a prosecution. We supplied a copy of our guidance material on electronic marketing. On receipt of that letter, the individual concerned phoned the Office to say that he was trying to make his marketing databases compliant. He undertook to include an opt-out mechanism in all future marketing text messages.
About six weeks later we were contacted by the same complainant to advise us that further text messages were being sent to his phone from Company X. We also received a complaint from another member of the public indicating that he was receiving unwanted text messages from Company Y (with a very similar name to Company X). He explained that he had attended the company’s establishment a few months previously and that he had given his phone number when signing up to participate in its games. He indicated that he had attempted to opt out by replying with the word 'stop' but this did not yield a result. He called in person to the venue where he asked at the reception desk that his phone number should be removed from the marketing list. After writing down his phone number and giving it to the gentleman working at the desk, he was informed that it would be taken off the mailing list immediately. Despite his efforts the text messages continued to arrive. He then lodged his complaint with us. At this point we had two valid complaints and we wrote to the same individual in relation to them. Our correspondence went unanswered. We then conducted a search on the Company Registration Office records from which we established that Company X was a partnership business owned by two named individuals. One of the two business owners was the individual that previously engaged with us on foot of the first complaint. We wrote to the business at its registered address but we received no response to that correspondence.
We received a third complaint in 2009 from a doctor who was receiving unsolicited marketing text messages from Company X, promoting two venues. She stated that she had not supplied her phone number to any such business. Similarly, the first complainant told us that he was now getting text messages advertising Company X’s second venue and that he had received a text message indicating that events at the original venue were being discontinued. During our investigations we found an internet posting by one of the business owners notifying the public that the original venue had closed and that all business had moved to the new location. We directed our investigations to the new venue and to the individual whose postings appeared on the internet. In a final effort, we wrote separately to the two business owners by registered post in January 2010. We received no response.
In light of the previous warning that we had issued in April 2008 regarding marketing text messages promoting Company X and taking account of the fact that, despite extensive efforts on our part, the company and its business owners had failed to cooperate with our statutory investigation, we decided to prosecute the two business owners in their individual capacities. The defendants pleaded not guilty when the case came before the Dublin Metropolitan District Court in July 2010 and a trial date was set. A full hearing took place in November 2010. The Court heard evidence from two of the complainants and from our Office. Both business owners gave evidence in their defence. One of the business owners told the Court that he had ceased to be involved in the business from around the middle of 2008 and he denied that he was responsible for the text messages which were the subject of the charges before the court. The Court accepted this and dismissed the charges against that individual. In relation to the case against the other individual, the Court ruled that the prosecution had proven its case in relation to ten of twelve charges. The Court recorded a conviction on one charge of sending an unsolicited marketing text message in contravention of Regulation 13(1)(b) of S.I. 535 of 2003 (as amended) and it imposed a fine of €1,000. The Court also recorded a conviction on one charge of sending a marketing text message without a valid address to which the recipient might send an opt-out request in contravention of Regulation 13(8) and it imposed a fine of €1,000. The court stated that all remaining eight charges were taken into consideration. The defendant was also ordered to make a contribution of €4,000 to our legal costs.
We were satisfied with the outcome of this case. Despite the failure of the business owners concerned to cooperate with our investigations, we persevered and ultimately brought them to justice in relation to the offences that had been committed. We afforded Company X a chance to bring its marketing activities into compliance in 2008. Unfortunately it chose to take what appeared to be the easy option and to do nothing about its marketing database and procedures. The decision to ignore our warning in 2008 of future prosecutions cost one of its owners dearly in terms of penalties, legal costs and most of all, a criminal record.