Last year the Information Commissioner’s Office (ICO) received more than 175,000 complaints from the targets of electronic marketing. A Which? survey also reported that 4 out of 5 people surveyed regularly received cold calls and a third of these people felt intimidated as a result. Of course these reports probably represent a tiny fraction of the number of unwanted unsolicited communications that are actually made, so it will be interesting to see how much of an impact the forthcoming changes, brought by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 - SI 2015/355 (the 2015 Regulations), are going to have.

From next month, 6 April 2015, the ICO will no longer have to prove that a company’s unsolicited electronic communications have caused “substantial damage or substantial distress” to consumers before it is able to impose a fine under section 55A(1) of the Data Protection Act 1998 (which implements regulations 19 to 24 of the 2003 Regulations (Privacy and Electronic Communications (EC Directive) Regulations 2003 - SI 2003/2426). The change will therefore make it easier for the ICO to take action against companies who have issued unsolicited marketing communications in breach of the Regs,   including direct marketing calls, texts, emails, automated calls and fax messages.

The 2003 Regulations require companies to obtain an individual’s consent before sending marketing communications. Consumers who have opted out of live marketing calls must not be contacted at all. A quick, simple and free of charge way for individuals to record their wish not to receive unsolicited marketing calls is to register with the Telephone Preference Service (TPS), a purpose-built central opt-out register. As long as a registered telephone number remains active it will remain in the TPS Register.

The ICO can currently issue monetary penalties of up to £500,000 to companies breaching the rules relating to unsolicited direct electronic marketing. The government is now assessing the possibility of introducing further powers for the ICO to hold board executives personally responsible for the nuisance marketing of companies. Mandatory caller line identification may also be introduced so that all cold callers will have to show their telephone numbers.

In an effort to protect public security in the event of an emergency, the 2015 Regulations also amend the current regime to allow mobile service providers to process and store traffic and location data for the purpose of providing an 'emergency alert service' to warn and inform mobile users of the fact or effect of an emergency that may affect them by reason of their location. This only applies to emergencies that fall within s.1(1) of the Civil Contingencies Act 2004 which a public authority notifies the service provider of, to the extent that these affect the location of the mobile user.

Are your electronic communication practices exposing you to the risk of an enforcement fine?