Précis

In an unusual step a local trading standards authority has successfully prosecuted a company for breaching consumer rights legislation by making direct marketing calls to people who have registered on the Telephone Preference Services’ (“TPS”) “do not call” list.  Actions for nuisance marketing calls are usually pursued by the Information Commissioner under separate data protection laws, namely the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  The company, Apple Group Holdings Limited, was fined over £36,000 at Weymouth Magistrates Court following an investigation by Dorset County Council Trading Standards Service.

What? 

In February, Dorset County Council Trading Standards Service prosecuted the company for subjecting Dorset residents to cold calls by telephone and at their doorstep.  The company has a number of different trading names and owns several companies that sell windows, doors, conservatories and solar panels across 12 offices in the region.  The company ultimately pleaded guilty to 11 offences of engaging in unfair commercial practices, contrary to the Consumer Protection from Unfair Trading Regulations 2008, including 5 offences of persistently making unwanted telephone sales calls to consumers.  The other 6 offences related to making sales visits to people’s houses, having been asked not to do so, such practice is not however covered by PECR.  The company was reported to have caused persistent nuisance to elderly and vulnerable people.

So what?

The Information Commissioner has a number of powers available to him under PECR including issuing a civil monetary penalty of up to £500,000.  Although he is very actively seeking to clamp down on nuisance calls, including by publicly naming those organisations whose compliance he is monitoring, he has only imposed relatively few monetary penalties, albeit they involved very substantial amounts.  This prosecution by Dorset Trading Standards under separate consumer legislation sends a clear message to organisations who engage in nuisance calling, that it is not only the Information Commissioner they should fear, but the many local trading standards authorities across the country who may be encouraged by Dorset County Council’s success in bringing this company to task.  Either way, fines and prosecutions of abuses in this area may become increasingly commonplace, and the risk of criminal liability rather than a civil fine may be a strong deterrent.

John Mitchison, head of the TPS, said:

“Companies breaching TPS laws now face a far greater risk of being prosecuted compared to this time last year, with over 200 Local Authority Trading Standards Services in the UK.  Businesses using telemarketing as a part of their marketing mix need to be cautious when conducting the right checks on the data they use or buy. Screening against the TPS is an essential part of data compliance and companies need to take all complaints seriously.”