Background

The Information Commissioner's Office (the "ICO") have recently issued an enforcement notice (known as a "stop order") under section 40 of the Data Protection Act 1998 against the company Change and Save Ltd for trying to disguise nuisance calls as a legitimate market research survey.

Anyone processing personal information is required to comply with the principles of the Data Protection Act and contravention of these principles can lead to an enforcement notice requiring compliance. The Privacy and Electronic Communications Regulations 2003 (the "PECR") run alongside the Data Protection Act and contain specific rules in relation to electronic communications that must also be complied with. A breach of the PECR can also result in enforcement action, fines or criminal prosecution.

Facts

Change and Save Ltd had been carrying out a telephone survey asking people when they had made or last updated their will. The calls then went on to promote will-writing, funeral and legal services. The ICO received 254 complaints about the calls triggering an investigation. Change and Save Ltd argued that they were allowed to call people because it was a lifestyle survey and so not subject to the direct marketing rules in the PECR.

Outcome

The ICO concluded that Change and Save Ltd had been "sugging" (selling under the guise of research) by falsely labelling its calls as a market research survey. The "sugging" was direct marketing and so Change and Save Ltd were in breach of the direct marketing rules and regulation 21 of the PECR which provides that public electronic communications shall not be used for the purposes of making unsolicited calls for direct marketing purposes where subscribers have notified callers they do not want to be called.

The ICO has imposed an enforcement notice on Change and Save Ltd banning them from "sugging" and if they do not comply with this stop order, they will face prosecution.

Head of Enforcement at the ICO, Steve Eckersley has issued a warning stating:

"Firms trying to avoid direct marketing rules will quickly be found out - people spot a nuisance call when they get one. We know this because people complain to us. Trying to disguise a nuisance call as a survey or market research simply will not wash".

Comments

This latest warning by the ICO illustrates the importance of organisations complying with their obligations under the Data Protection Act and PECR and demonstrates that the ICO are fully prepared to take action against organisations ignoring those obligations.

The ICO are also there to help organisations comply with their obligations in relation to the Data Protection Act and PECR and can offer advice and guidance in relation to this.

Recent figures published by the ICO in the 2015/2016 financial year further demonstrate the relevance and importance of compliance. In this period the ICO received 161,190 concerns about nuisance calls alone and a crackdown on nuisance marketing has led to more than £2 million in fines being imposed on organisations behind illegal calls.