From the 6 April this year the UK regulator the Information Commissioner will be able to issue fines for breaches of the direct marketing provision of the Privacy and Electronic Communications (EC Directive) Regulations 2003 without having to prove the organisation making the infringing call or sending the text or email knew or ought to have known that such breach would be of a kind likely to cause substantial damage or substantial distress.
This change in the law has been adopted primarily after Information Commissioner’s fine of £300,000 on Manchester based Tetrus Telecoms was held by the Information Rights Tribunal not meet the legal threshold of causing “substantial damage or substantial distress”.
To impose a fine (which may be up to £500,000) the Information Commissioner now only has to demonstrate the person sending the communication knew or ought to have known that there was a risk the 2003 Regulations would be contravened but failed to take reasonable steps to prevent the contravention.
This power will make it easier for the Information Commissioner to impose fines in this area but does change UK citizen’s the private rights of enforcement.
In addition to the above change of the law, the same legislation permits certain providers of mobile electronic communications services to disregard restrictions on the processing of traffic and location data that would otherwise be imposed on them by the 2003 Regulations. The providers are only permitted to do this for the purposes of providing an emergency alert service, or testing such a service, and only when acting in accordance with directions given by a relevant public authority or, in relation to testing, by a Minister of the Crown.