The Data Protection Commissioner (DPC) has prosecuted several companies in the Dublin District Court for the sending of unsolicited emails and SMS messages.  However, the DPC noted particular concerns with telecommunications companies, and indicated an intention to seek to impose fines of up to €250,000 for further breaches.

Therapie, the beauty salon, had sent marketing text messages to a customer with no opt out option, despite the fact that the customer had requested her number be removed from their database in 2010. In 2008 the customer had given her number to a related company, Optilase, and this information was then shared with Therapie. The Court convicted Therapie on two charges of sending unsolicited messages and fined it €4,000.

Carphone Warehouse was fined €2,500 for two charges of sending unsolicited email marketing messages despite previous warnings. The company claimed to have had received verbal consent from customers. However this argument was disputed and rejected as they could not provide any evidence.

Meteor, the mobile phone company, and Hutchison 3G (the mobile operator, Three/3) were ordered to pay €5,000 and €2500 respectively to two children’s hospitals.  Meteor had sent an unsolicited marketing email to between 11,000 and 18,500 individuals who had opted out of receiving such communications.

The Office of the DPC is reportedly becoming more frustrated and concerned with the failure of telecommunications companies to comply with the laws on marketing messages.  It was indicated by the DPC that it would prosecute again if necessary in the Circuit Court where fines of up to €250,000 could be imposed.

While this area of law can be complex, it is imperative on companies that send email and SMS messages or make marketing phone calls to landlines or mobile phones to ensure that (a) they have the requisite opt-in or opt-out consent and (b) provide the legally required information in such messages to allow recipients to opt-out of the receipt of future messages.  The DPC has increased the number of prosecutions recently with the aim of thwarting further breaches.  Take action!