Prosecutions for the sending of marketing text messages [30/05/2011]

We continued to use our powers of prosecution to ensure that consumers are not inundated with unsolicited marketing text messages to their mobile phones.  A person’s mobile phone is now almost an extension of the person and unwanted messages can be extremely intrusive.  Regulation 13 of S.I. No. 535 of 2003 (as amended) provides that marketing text messages may not be sent to any individual unless that individual has consented to the receipt of such messages.  Furthermore, it also prohibits the sending of marketing text messages without the inclusion of a cost- free opt-out facility which would enable the recipient to object to receiving further messages.  It provides for penalties of up to €5,000 per message sent for each separate offence, or up to €250,000 on indictment or 10% of annual turnover if greater than this amount.  A number of the cases that we prosecuted in 2010 are described below. 

Company X (a salon)
In 2009 we received two complaints concerning unsolicited direct marketing text messages promoting special offers from branches of Company X.  One of the complainants had been a customer and the second complainant had made a treatment reservation which she later cancelled.  Both individuals informed the Office that they had not consented to receiving marketing messages.  Some of the marketing messages sent to these complainants did not contain an opt-out facility. 

We contacted the company branches concerned.  Neither branch was able to provide evidence that the complainants had consented to receiving marketing text messages.  On that basis we were satisfied that offences had been committed by both branches of Company X and we decided to prosecute those offences.  This was not the first occasion on which this company had come to our attention.  In 2006, during the course of our investigation of a separate complaint, we drew the company's attention to the law with regard to electronic marketing.  

In January 2010, in the Dublin District Court, the company branches involved pleaded guilty in respect of one offence each under Regulation 13(1)(b) of S.I. No. 535 of 2003 (as amended) in respect of the sending of a direct marketing text message without consent.  They also pleaded guilty to one offence each under Regulation 13(8) of S.I. No. 535 of 2003 (as amended) for not providing a valid opt-out address on those marketing messages.  The Judge accepted the guilty pleas and imposed penalties of €250 for each offence.  The Judge also ordered the defendants to pay our costs.
  
Company Y (a fitness centre)
In 2008 we received a complaint regarding marketing text messages from Company Y.  The complainant stated that she had no previous relationship with the company, that she had not given them her mobile phone number and that she had never consented to the receipt of marketing text messages from them.  She informed us that she had contacted the company to find out how it had obtained her mobile phone number.  She was told that the number had been collected in February 2008 when an individual had taken a tour of one of its gyms and had supplied the mobile number as a contact number.  This was confirmed to us by Company Y.  The company also confirmed that the individual who toured the gym was not the complainant.  The text message also lacked a valid opt-out mechanism.

Company Y admitted that it had no opt-out facility in the message and indicated that, in future, an opt-out would be included in all direct marketing text messages.  At this point, in May 2008, the company informed us that the complainant's mobile phone number had been removed from its marketing database.  In line with our usual policy on such matters we noted their assurances and issued a warning.  

The complainant contacted us again in December 2008 to inform us that she had received a further marketing text message from Company Y.  Again, this message did not include any opt-out mechanism.  In response, the company indicated that it had erroneously re-sent a message from March 2008.  This resulted in the complainant receiving a further marketing message with no opt-out facility.  On this basis we initiated prosecution proceedings.

In January 2010 the case came before Dublin Metropolitan District Court where Company Y pleaded guilty in respect of one offence under Regulation 13(1)(b) of SI 535 of 2003 for the sending of a direct marketing text message without consent.  The Judge accepted the guilty plea and imposed a fine of €500.  The Judge also ordered the defendant to pay our costs.  We have not had any subsequent valid complaints in relation to the company.

Company Z (a communications company)
In May 2009 we received a complaint from the mother of a thirteen year old girl who had received unsolicited marketing text messages from Company Z.  As a result of clicking on a link in one of those unsolicited text messages, the child inadvertently joined a premium rate subscription service. 

The complainant informed my Office that her daughter had previously entered a competition by text message in a teenage magazine.  She assumed that this was the source of the premium rate subscription service.  However, when she contacted the magazine, she was told that its competitions are stand-alone and did not involve joining a premium rate subscription service.  She said that the magazine also assured her that information collected through its competitions is not disclosed to third parties.

When we investigated the complaint we found that Company Z had obtained the child's mobile phone number as a result of her entry to the competition in the magazine.  This information gave rise to further questions as to how Company Z obtained customer information which was the property of a separate company.  We subsequently established that both Company Z and the magazine used the technical platform of the same service provider to send and receive text messages for their respective services/competitions.  A monthly report provided to Company Z by the service provider contained, in error, the mobile phone details of the entrants to the competition run by the magazine.  Company Z placed those mobile phone numbers on its promotional database without checking to ensure that the numbers concerned had opted in to its database and without checking the basis for the consent.

We initiated prosecution proceedings and the case came before the Dublin Metropolitan District Court in February 2010.  Company Z entered a guilty plea in relation to one offence under Regulation 13(1)(b) of SI 535 of 2003 (as amended).  Having heard the evidence, the Court was satisfied that the case against the company had been proven.  Instead of recording a conviction and imposing a fine, the Judge applied the Probation Act on condition that the company make a donation of €3,000 to the GOAL charity for the Haiti Appeal and that it make a contribution to our prosecution costs.  The Judge emphasised that the Court record would show that the facts relating to the offence were established and that that record would be available to the Court should the defendant come before it on any future occasion.  We have not had any subsequent valid complaints in relation to the company.