Irish Data Protection Commission Case Studies

Case Study 2: Telecommunications companies prosecuted for marketing offences. [2011] IEDPC 2 (2011)

Arising from a number of complaints which I received in 2009 and 2010 I took prosecution proceedings against four telecommunications companies in March 2011 in relation to offences under SI 535 of 2003 (as amended). The cases against Eircom, Vodafone, O2 and UPC were heard on the same day at the Dublin Metropolitan District Court.

Eircom

Eircom entered a guilty plea in respect of one charge for an offence under Regulation 13(4)(b). The charge related to an unsolicited marketing telephone call to an individual whose landline number stood recorded on the NDD opt out register as not wishing to receive marketing calls. During the course of our investigation of this complaint, we established that the call had been made from a mobile phone used by one of the company's "feet on the street" sales agents. The list used by the agent had not been cleansed against the NDD opt out register. The Court accepted the guilty plea and it applied the Probation of Offenders Act conditional upon a payment of €2,000 being made by Eircom to Accord.

Vodafone

Vodafone entered guilty pleas in respect of four charges under Regulation 13(4)(b) and one charge under Regulation 13(1)(b). The charges under Regulation 13(4)(b) related to the making of repeated unsolicited marketing phone calls to an individual whose landline number stood recorded on the NDD opt out register. The calls were made between September 2009 and June 2010. Three of the four calls were made while my Office's investigation was ongoing. The Court accepted the guilty pleas, it entered convictions against Vodafone in respect of all four charges. It imposed a fine of €250 in respect of the first unsolicited call, €400 in respect of the second call, €1,000 in respect of the third call and €1,200 in respect of the fourth call.

The charge under Regulation 13(1)(b) related to the sending of an unsolicited marketing text message in February 2010 to a customer who had opted out of receiving marketing communications from Vodafone. The customer had complained previously to my Office in 2009 about the sending of such marketing text messages by Vodafone. Further to that complaint the company assured us that it had opted her out of further marketing contact. The Court accepted the guilty plea, it entered a conviction against Vodafone and it imposed a fine of €1,000.

O2

O2 entered a guilty plea in respect of one charge under Regulation 13(1)(b). The charge related to an unsolicited marketing text message sent to a customer in February 2010. The customer had previously opted out of receiving marketing communications from O2 in 2007. The Court accepted the guilty plea and it applied the Probation of Offenders Act conditional upon a payment of €2,000 being made by O2 to The Spinal Injuries Fund.

UPC

Guilty pleas were entered by UPC in relation to eighteen charges against it under Regulation 13(4)(a). The charges related to the making of unsolicited marketing phone calls to four individuals who had previously informed UPC that they did not wish to receive further marketing calls. In one case the defendant faced twelve charges for persistent calling of an individual in a two-week period in 2009. The Court recorded twelve convictions in this case and it imposed fines of €400 for each conviction. In the second case, UPC was convicted on three charges of making unsolicited marketing phone calls and the Court imposed a fine of €300 on each conviction. In the third case, two convictions were recorded with fines of €400 imposed for each. In the last case, one conviction was recorded with a fine of €600 imposed by the Court.

The total amount of fines imposed on UPC amounted to €7,100. In deciding the penalties, the Court noted that UPC had two previous convictions arising from prosecution proceedings taken by me in 2010 concerning the making of unsolicited marketing phone calls.

In all of the above cases, the defendants paid costs to my Office. I was very pleased with the outcome of the prosecution proceedings in these cases. It sent a strong message to organisations that they must comply with the law which applies to the making of unsolicited marketing contact with individuals, be they customers or not, or else risk prosecution and the consequences of a criminal record.

UPC Settlement

At the time of the prosecution proceedings against UPC, my Office had three complaints on hands concerning unsolicited marketing telephone calls, the investigation of which had not been completed. By mid-year those investigations were concluded and we were satisfied that prosecutable offences had been committed in respect of each complaint. We met with UPC to present it with the options (including prosecution) available to us to progress these files to a conclusion. Subsequently, we reached agreement with UPC in August 2011, the terms of which included a goodwill gesture of €500 to each of the three complainants, an overall donation of €20,000 to charity (this amount was shared among four Irish charities- Focus Ireland, Canteen Ireland, Respect and The Jack & Jill Children's Foundation) and the publication of a statement on the homepage of the UPC website. This statement, among other things, outlined broadly the terms of the agreement and it indicated that additional controls had been put in place internally and with third party sales agents to ensure that customer preferences are accurately recorded in future. The statement also noted that the Office of the Data Protection Commissioner was satisfied that UPC now has in place improved procedures to enable it to fully comply with its data protection obligations.