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CASE STUDIES 2013 - Data Protection Commissioner - Ireland [2013] IEDPC 12 (2013)
URL: http://www.bailii.org/ie/cases/IEDPC/2013/2013IEDPC12.html
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[2013] IEDPC 12
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GENERAL
Four Star Pizza (Ireland) Limited
This Office received a number of complaints from individuals regarding unsolicited text messages sent by Four Star Pizza (Ireland) Limited without the consent of the recipients and in some cases without the inclusion of an opt-out facility. The majority of the complainants informed us that they began to receive the unsolicited marketing text messages after placing orders in different Four Star Pizza stores. We had previously formally warned Four Star Pizza (Ireland) Limited that, if further offences were committed, the Commissioner would take prosecution action.
In response to our investigations of the complaints, Four Star Pizza (Ireland) Limited admitted that it had not obtained valid consent to send marketing text messages to the complainants. It was clear that, despite the warning issued to Four Star Pizza (Ireland) Limited, it had not put adequate procedures in place to ensure compliance with the marketing regulations. The Commissioner decided to proceed to prosecution.
At Dublin District Court on 10 June 2013, Four Star Pizza (Ireland) Limited pleaded guilty to six charges under Regulation 13(1) of SI 336 of 2011 for the sending of unsolicited marketing text messages without consent. The Court applied the Probation of Offenders Act and ordered that Four Star Pizza (Ireland) Limited pay €4,000 to Temple Street Children’s Hospital in lieu of a conviction. The Office’s prosecution costs were also recouped from the defendant.
Levet Limited T/A Fast Fit
This Office received a complaint in relation to the sending of unsolicited text messages by Levet Limited T/A Fast Fit. The Office had previously sent a formal warning to Levet Limited T/A Fast Fit in relation to its marketing operations.
In response to our investigations, Fast Fit admitted it did not have any evidence that it had obtained valid consent to send marketing text messages to the individual concerned. The Commissioner decided to prosecute Levet Limited T/A Fast Fit.
At the Dublin District Court on 22 April 2013, Levet Limited T/A Fast Fit pleaded guilty to one charge of sending an unsolicited marketing text message. The Court ordered the defendant to contribute €2,000 to the Jack and Jill Foundation and it applied the Probation of Offenders Act. The defendant agreed to pay the Office’s prosecution costs.
Wexford Arts Centre
We received a complaint from an individual regarding an unsolicited marketing text message he received from Wexford Arts Centre. This message did not contain an opt-out mechanism for the recipient to opt out of the marketing database. In response to our investigation, Wexford Arts Centre informed us that, due to a combination of human error and technical difficulties, the marketing text message did not contain an opt-out. It told us that it had now removed the phone number from its database. On this basis, Wexford Arts Centre was issued with a formal warning with regard to its future marketing activities.
The same individual subsequently made a new complaint to this Office as he received yet another unsolicited marketing text message from Wexford Arts Centre despite being informed his number had been removed three months earlier. On this occasion, Wexford Arts Centre informed us that it had removed this individual’s phone number but, due to human error, those changes had not saved correctly. The Commissioner decided to prosecute Wexford Arts Centre in relation to two offences:- failure to include an opt-out facility in a marketing text message (in respect of the first complaint) and sending an unsolicited marketing text message without consent (in respect of the second complaint).
At Wexford District Court on 22 July 2013, Wexford Arts Centre Limited entered a guilty plea in relation to both charges. The Court convicted Wexford Arts Centre Limited on one charge, it took the second charge into consideration and it imposed a fine of €500. The Court also ordered the defendant to pay €1,000 to this Office in respect of its prosecution costs.
Patrick Fox Hypnotherapy Limited
This Office received a complaint from an individual regarding an unsolicited marketing text message received from Patrick Fox Hypnotherapy Limited, a hypnotherapy clinic in Co. Meath. The marketing text message did not include an opt-out facility for the recipient to remove their number from the marketing database. The complainant informed us that she attended the clinic over three years previously and that she subsequently requested that her mobile number be deleted from its marketing contact list. We had previously sent a warning to Patrick Fox Hypnotherapy Ltd following a complaint from another individual. In that previous case, the complainant informed us that she received a marketing text message after placing an advertisement (unrelated to hypnotherapy services) containing her phone number in a local newspaper in the West of Ireland. That individual had no previous dealings with Patrick Fox Hypnotherapy Clinic.
In response to our investigation of the current complaint, Patrick Fox Hypnotherapy Clinic informed us that the text message in question was not intended as a marketing text message. However, it was clear to this Office that the message was marketing in nature as it offered discounts and promoted its range of treatments. The Commissioner decided to prosecute the case in light of the company’s failure to heed the formal warning.
At Trim District Court on 26 September 2013, Patrick Fox Hypnotherapy Limited pleaded guilty in relation to the sending of an unsolicited marketing text message. The Court imposed a conviction and a fine of €1,000 on Patrick Fox Hypnotherapy Limited in relation to the sending of an unsolicited marketing text message without consent and it ordered the defendant to pay prosecution costs of €2,009.
Lex Software Limited T/A Legal and General Software
This Office received two complaints with regard to unsolicited marketing emails received from Lex Software Limited T/A Legal and General Software. One of the complainants had made a complaint to this Office about the same entity previously, having received unsolicited marketing emails from it in 2011. On that occasion Lex Software Limited T/A Legal and General Software was issued with a formal warning from us with regard to compliance in its future marketing activities.
In relation to the two current complaints, Lex Software Limited T/A Legal and General Software informed us that the complainants received unsolicited marketing emails due to human error. The Commissioner decided to prosecute the offences.
At Dublin District Court on 14 October 2013, a guilty plea was entered by the company on two charges – one for sending an unsolicited marketing email without consent and the second for failing to include in a marketing email a mechanism for opting out. The Court imposed a conviction in relation to both offences and it imposed fines of €200 on each offence. The defendant also covered this Office’s prosecution costs.
Hanford Commercial Limited T/A The Maldron Hotel, Wexford
A complaint was received in this Office from an individual who informed us that he received an unsolicited marketing text message on his company mobile phone from Hanford Commercial Limited T/A The Maldron Hotel, Wexford. This occurred despite this Office being assured, on foot of a previous complaint from the same person three years previously, that the mobile phone number was removed from the company’s database.
In response to our investigation, Hanford Commercial Limited T/A The Maldron Hotel, Wexford informed us that this error occurred due to a technical error whereby a manual block put on the complainant’s number in 2010 did not carry through to a new account it had set up with its text service provider, Zamano. The Commissioner decided to prosecute Hanford Commercial Limited T/A The Maldron Hotel, Wexford for an offence under Regulation 13(4) of SI 336 of 2011.
On 14 October, 2013 at Dublin District Court, Hanford Commercial Limited T/A The Maldron Hotel, Wexford pleaded guilty to the sending of an unsolicited marketing text message to the complainant’s company mobile phone. The Court convicted Hanford Commercial Limited T/A The Maldron Hotel, Wexford and it imposed a fine of €200. The prosecution costs were recovered by this Office from the defendant company.
Cherryhill Inns Limited T/A The Oliver Plunkett Bar, Cork
A complaint was received from an individual who received an unsolicited marketing email from Cherryhill Inns Limited T/A The Oliver Plunkett. The same individual had cause to complain to this Office regarding unsolicited marketing text messages she received from the same company over a year previously which she could not opt out of. In that previous instance, the company informed us that the complainant had signed up to receiving marketing messages and it produced a ‘sign up’ sheet which had her details entered on it. Having examined the sheet, the complainant informed us that she did not enter her details on it and that the handwriting on it was not hers. During that investigation the company agreed to remove the individual’s contact details and it was issued with a formal warning by this Office with regard to compliance in its future marketing operations.
It was clear from the investigation of the current complaint from the same person that the company did not properly remove her contact details from its database. The Commissioner decided to prosecute the company. At Cork District Court on 22 October, 2013 Cherryhill Inns Limited T/A The Oliver Plunkett pleaded guilty to three charges relating to the sending of an unsolicited marketing text message without consent, the sending of an unsolicited marketing email without consent and the sending of an unsolicited marketing text message without an opt out mechanism. The Court applied the Probation of Offenders Act conditional upon a charitable donation of €750 being made to the Cork Simon Community in respect of each of the three charges. Prosecution costs were recovered from the defendant.
Bord Gáis Éireann
We received a complaint from an individual regarding an unsolicited marketing email he received from Bord Gáis Éireann. This Office had previously issued Bord Gáis Éireann with a warning following the investigation of a complaint concerning unsolicited marketing phone calls made to an individual without his consent.
In response to our investigation, Bord Gáis Éireann informed us that, due to a manual error, an incorrect data file was used to send out the marketing email and, as a result, over nine hundred customers who had previously opted out of marketing communications were affected.
On 22 October 2013 at Cork District Court, Bord Gáis Éireann pleaded guilty to sending an unsolicited marketing email. The Court applied the Probation of Offenders Act conditional upon a charitable donation of €750 being made by the company to The Society of St. Vincent de Paul. Prosecution costs were recovered from the defendant.
Kearys of Cork
A complaint was received in the Office from an individual who received an unsolicited marketing text message from Kearys of Cork which did not include an opt-out option. The complainant said that he attended Kearys of Cork to have a car door fixed but he had not signed up to receive any promotional messages. This Office had previously warned Kearys of Cork with regard to its marketing operations following the investigation of two complaints. In that warning we made it clear that we considered that the company had not obtained valid consent to send marketing communications to these individuals and we instructed it to perform a cleansing exercise on its marketing database to ensure that it was fully compliant with the marketing regulations.
In response to our current investigation, Kearys of Cork informed us that it was under the assumption that, since the complainant was an existing customer, that there was no issue in contacting him. It was apparent that the company had not taken appropriate remedial action following our previous warning with regard to obtaining valid marketing consents from customers and, accordingly, the Commissioner decided to prosecute the latest case.
On 22 October at Cork District Court, Kearys of Cork pleaded guilty to the sending of an unsolicited marketing text message. The Court applied the Probation of Offenders Act upon condition that the company make a charitable donation of €750 to the Cork Simon Community. Prosecution costs were recovered from the defendant.
TELECOMMUNICATIONS SECTOR
Eircom Ltd
We received complaints from two individuals who received unsolicited marketing phone calls from Eircom. The first complainant informed us that he had not been a customer of Eircom for many years and that he had opted out of marketing communications from the company. He made a complaint to Eircom directly and was informed that his details were removed from the telesales area and that it would not be contacting him again. Despite this assurance, Eircom phoned him for marketing purposes again, prompting him to complain to this Office. Of particular concern to us was the fact that the complainant received a further marketing phone call from Eircom several weeks after the commencement of our investigation. In fact, during the course of our investigation, we had asked Eircom on three separate occasions prior to the making of the latest call to confirm that the complainant’s number was removed from the marketing database.
Separately, a complaint was received from an individual who received a marketing phone call from an agent of Eircom on her landline number which was opted out of marketing on the NDD Opt-Out Register. On the same day, the agent called in person to her home as he was working as part of a “Feet on the Street” team. Eircom initially informed our investigation that it had no record of the call taking place. We subsequently traced the calling mobile phone number and we found that it was registered to the sales agent concerned.
In both cases, we were satisfied that Eircom did not have consent to make marketing phone calls to the individuals concerned and the Commissioner decided to prosecute Eircom for offences under Regulations 13(5)(a) and 13(5)(b) of SI 336 of 2011. Eircom pleaded guilty to two charges at Dublin District Court on 2 December, 2013. The Court imposed two convictions and it fined the company €1,500 on both charges. The company agreed to pay the prosecution costs incurred by this Office.
Meteor Mobile Communications Ltd (T/A Meteor)
This was the second successive year that Meteor was prosecuted by the Data Protection Commissioner for marketing offences. Having successfully prosecuted Meteor on 3 December, 2012 (see Case Study 12 in Annual Report 2012) a further offence was committed by Meteor on the following day by the sending of an unsolicited marketing text message to a customer whose mobile phone had been confirmed as having been opted out in November 2012. The individual also produced a copy of his original contract showing that he had opted out of receiving SMS marketing communications from Meteor.
The second case also involved a customer being sent unsolicited marketing text messages. In this case, the customer opted out of marketing in October 2012 and he received confirmation of his opt out from Meteor in November 2012. Despite that, he subsequently received three marketing text messages from Meteor. At the Dublin District Court on 2 December 2013, Meteor pleaded guilty to three charges of breaching Regulation 13(1) of SI 336 of 2011. The Court imposed three convictions and it fined the company €3,000 in respect of each of three charges. The company agreed to pay the prosecution costs incurred by this Office.
Telefónica Ireland Limited T/A O2
Two complaints were made to this Office in January 2013 from customers of O2 who received marketing text messages from O2 despite being opted out of marketing communications. During the course of our investigation of these complaints, O2 admitted that, due to an incorrect application of its consent for marketing rules, over 78,000 customers were sent marketing text messages in contravention of their marketing preferences.
In a separate complaint, an individual reported that he had received a marketing email in December 2012 from O2 to his email address which had been opted out of marketing communications from the company in April 2011. O2 informed our investigation that the agent who dealt with the opt-out request had processed the request on only one of two accounts held by the customer and that this led to him receiving a subsequent marketing email. At the Dublin District Court on 2 December, 2013 the company entered a guilty plea in respect of three charges for offences under Regulation 13(1) of SI 336 of 2011. In lieu of convictions, the Court ordered the defendant to make charitable donations of €2,000 to the Irish Wheelchair Association, €2,000 to the Children’s Hospital, Crumlin and €2,000 to Pieta House. The company agreed to pay the prosecution costs incurred by this Office.
Vodafone
We received several complaints against Vodafone in 2012 and 2013. One customer reported to us in November 2012 that he had received a marketing phone call on his mobile phone despite it having been opted out of receiving marketing calls. The same customer had previously complained to us in February 2012 about receiving marketing calls from Vodafone and during the course of that investigation Vodafone confirmed to us in April 2012 that the customer’s mobile number was now opted out. During the course of our investigation of this customer’s current complaint, Vodafone admitted that its agent was negligent in applying the opt-out reference table when constructing a marketing campaign and this led to marketing calls being made to over 2,000 customers who had previously opted out of marketing.
A customer complained to us that he received marketing text messages even though his mobile phone was not opted-in to marketing. He explained that he was a Vodafone customer for landline and broadband services only and not for mobile phone services. He informed us that he had an issue with his landline on one occasion and he gave his mobile number to Vodafone in order to have an engineer contact him. Vodafone informed us that it had opted-in the mobile phone number to marketing. It confirmed that it opted the number out of marketing on 22 May, 2012. Despite this, the individual received a further marketing text message in June 2012. Vodafone explained that this occurred because the campaign team used an outdated table.
We received a complaint in October 2012 from a Vodafone customer who received marketing phone calls to his mobile phone during that month despite having received confirmation by email from Vodafone in September 2012 that his account had been unsubscribed from all marketing calls. During our investigation, Vodafone initially denied that the calls were made. We extended our investigation and we established from the service provider used by Vodafone that the calls were made as alleged by the complainant. Despite this, Vodafone continued to deny that any breach of the Regulations had occurred. Our investigation established that five offences had been committed in this case.
In May 2013, we received a complaint from an individual who continued to receive marketing phone calls to his mobile phone even though he had written confirmation issued to him by Vodafone in September 2012 that his details were removed from its marketing database. After a four months delay, Vodafone informed our investigation that the letter issued in September 2012 confirming the opt-out preference was noted on the system by the agent who did not follow up on the opt-out action.
At the Dublin District Court on 2 December, 2013 Vodafone pleaded guilty to eleven charges – nine concerned breaches of Regulation 13(6) of SI 336 of 2011 in respect of unsolicited marketing phone calls to mobile phone and two concerned breaches of Regulation 13(1) in relation to unsolicited marketing text messages. The Court convicted Vodafone on seven charges and imposed fines of €3,000 on each charge. The Court applied the Probation of Offenders Act on four charges conditional on the defendant making donations of €3,000 to each of the following charities:- Irish Wheelchair Association, Laura Lynn Foundation, Children’s Hospital Crumlin and Pieta House. The company agreed to pay the prosecution costs incurred by this Office.