Cowboy marketers face record fines in the New Year

Cowboy-marketersCurrent law

Under EU Privacy and Electronic Communications Regulations (PECR), organisations and companies are prohibited from transmitting or instigating the transmission of unsolicited electronic communications to consumers for the purposes of direct marketing unless the person receiving those communications has provided prior consent for the messages to be sent.

Companies also mustn’t disguise or conceal their identity in the messages or use invalid addresses where recipients of the messages would send responses to ask for the messages to stop being sent.

Marketers can send direct marketing via electronic mail to consumers if they have “obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient”, where the marketing is for “similar products and services only” and providing the recipient has a “simple means” to refuse the use of their contact details for that marketing “at the time of each subsequent communication.”

New powers to stop cowboy marketers

Cowboy marketers that send spam text messages, make nuisance calls or carry out other types of unsolicited direct electronic marketing activities face up to £500,000 in fines if their activities cause “annoyance, inconvenience or anxiety” under new plans currently being considered by the Government and supported by Ofcom, the Consumers Association and the DMA.

This latest move will give the Information Commissioner’s Office (ICO) new powers to take “robust action” against cowboy marketers that flout the PECR.

The change to the current EU Regulation will effectively lower the existing legal threshold of ‘harm’ and the ICO will now be able to issue fines if the breach is “likely to cause annoyance, inconvenience or anxiety.”

Currently, the ICO must prove that unsolicited direct electronic marketing causes consumers “substantial damage or substantial distress” and annoyance, inconvenience or anxiety isn’t sufficient in order to take action.

Now that’s set to change in early 2015. It’s evident that the current legal threshold is too high.

“The majority of rogue marketing firms make hundreds, rather than thousands, of calls and the nuisance is no less a nuisance for falling short of the ‘substantial’ threshold,” observes Information Commissioner Chris Graham.

“This change means we could now target those many companies sending unwanted messages – and we think consumers would see a definite drop off in the total number of spam calls and texts,” predicts Graham.

The current move comes as governments across the EU are under increasing pressure to protect the privacy of consumers who feel too little has been done to protect their rights as technology has made intrusive marketing techniques more widespread with little sanctions against cowboy marketers that felt able to avoid the long arm of the law.

Future of PECR?

PECR came into force on 26 May 2011 and this revision will extend its scope in 2015.

However, PECR is likely to be amended further or even repealed by the forthcoming EU General Data Protection Regulation that’s currently being considered by the European Council of Ministers and which could get European Parliament consent in the first half of 2015.




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