The High Court has dismissed a legal challenge by Realm Communications Ltd (Realm) against the Data Protection Commissioner. Realm challenged the power of the Data Protection Commissioner to prosecute, without first undertaking an effort to resolve complaints against Realm by "amicable resolution". The Commissioner argued that it could not be a condition precedent to a prosecution that the parties attempt mediation.
As a result of the High Court's ruling, Realm now face 60 District Court prosecutions for sending unsolicited direct marketing text messages to mobile phone users. The European Communities Electronic Communications Networks and Services Data Protection and Privacy Regulations 2003 prohibit the sending of unsolicited direct marketing messages by SMS text, email, fax or telephone without prior consent. Where the individual is an existing customer, direct marketing by SMS text messaging is permitted, provided a simple opt-out mechanism is available.
New Regulations on unsolicited communications, which came into effect on 13 December 2008, have increased the fines for sending unsolicited direct marketing messages. A company can now be fined up to €250,000, or if 10% of the company is greater than that amount, an amount equal to that percentage. A natural person may be fined up to €50,000. The new Regulations also clarify the scope of the Commissioner's power to prosecute by expressly providing that the Commissioner can bring and prosecute proceedings without first attempting to resolve a complaint by amicable resolution.