The UK government has announced proposals designed to make it easier for the Information Commissioner’s Office (“ICO”) to fine companies responsible for nuisance calls and text messages. Under the proposals, the current maximum fine of £500,000 would remain unchanged, but the threshold for imposing fines would be lowered.
The rules regarding nuisance calls and texts in the UK are contained in the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) and are enforced by the ICO. To assess a fine, the PECR requires that the ICO must prove that the recipient suffered “substantial damage or distress.” This standard is often difficult to establish, as illustrated by a 2013 Information Tribunal case in which over 400 individuals complained to the ICO regarding a sender of spam messages. The judge in that case held that although unwanted text messages had been sent “on an industrial scale,” the sender could not be fined because the text messages did not cause substantial harm to the recipients. The UK government’s proposal therefore seeks to lower the threshold from “substantial damage or distress” to “annoyance, inconvenience or anxiety,” making it significantly easier for the ICO to assess fines against companies that make nuisance calls or send spam text messages.
The ICO has stressed that nuisance calls and texts are not a small problem and noted that it received more than 2,000 complaints regarding nuisance calling in September 2014 alone. Christopher Graham, the UK Information Commissioner, commented that, “[t]he public clearly want to see a stop to nuisance calls and texts. We welcome this proposed change in the law which will enable the ICO to make more fines stick, sending a clear message to the spammers and scammers that the rules around cold calls and spam texts must be followed.”
The UK government’s announcement comes at the start of a six-week consultation by the Department for Culture, Media & Sport, which seeks comments regarding the proposals from businesses and consumers. The consultation is scheduled to conclude on December 7 , 2014.