In April 2015 an amendment to the Privacy and Electronic Communication Regulations made it significantly easier for the Information Commissioner to issue fines against companies sending nuisance marketing calls and texts. Prior to April 2015, the Information Commissioner’s Office (ICO) had to prove that a company engaging in such practices was causing “substantial damage or substantial distress”. The change of law, which followed two years of lobbying by the Information Commissioner, means that since April 2015, the ICO has only had to prove that a company is committing a serious breach of the Privacy and Electronic Communication Regulations in order to impose a fine. The impact of this change has been clearly reflected in the figures. Between April 2014 and March 2015 the ICO imposed fines totalling £360,000 against companies sending nuisance calls and texts. In the 18 months since the change in law was implemented the ICO has issued a total of £2.7m in fines for the same offences.
However, the ICO has this week released statistics showing that only 6 of the 27 fines issued since April 2015 have actually been paid in full. A staggeringly high £2.26m of the fines remain entirely unpaid. Elizabeth Denham, Information Commissioner, is under no illusions as to the reasons behind the low recovery rate. In a statement issued on 23 October 2016, Ms Denham highlighted the common practice of companies putting themselves into voluntary liquidation in a deliberate attempt to avoid liability. In an effort to prevent companies adopting this strategy, the government has this week announced plans to give the ICO the power to impose personal fines against individual company directors. Elizabeth Denham comments “making directors responsible will stop them backing away from fines by putting their company into liquidation. It will stop them leaving by the back door as the regulator comes through the front door.”
While these new measures are not yet in force it is clear that this is a step which would give real teeth to the ICO’s enforcement powers. So, directors beware – the ICO is making the fight against nuisance marketing personal.