Home Energy & Lifestyle Management Ltd (“Helms”), based in Glasgow, has been issued with a £200,000 fine by the Information Commissioner’s Office (“ICO”) after using an automated calling machine to contact thousands of householders without their consent.
The ICO representative when interviewed on Radio 4 said that this was a ‘wake up call’ to the industry and that the ICO would prosecute anyone flouting their regulations. Helms, it seems, indicated that they didn’t even know what the rules were before being prosecuted. Ignorance, however, is not a defence to the regulations.
Regulatory Law
The law is contained under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) which sets out the rules that companies have to adhere to when undertaking telemarketing. It provides for financial penalties when rules are broken.
On 6 April 2015 the threshold for issuing financial penalties under PECR changed. An amendment to the Regulations removed the requirement for the ICO to consider whether the contravention is likely to have caused substantial damage or substantial distress. The ICO will be able to issue a penalty for any serious contraventions of regulations 19 to 24 in PECR (these provisions cover automated calling and direct marketing).
Telemarketing Prosecution
In a period of two months, from October to December 2014, the ICO received 242 complaints from individuals. One said they were waiting for news of a terminally ill relative and couldn’t ignore the phone, feeling “powerless” against the barrage of automated calls. Another suggested that they were distressed by the calls as they had recently received a call to inform them a relative had passed away.
Steve Eckersley, the ICO’s head of enforcement, said:
“The monetary penalty is for a significant amount because of the clear failings of the company, and the number of people affected by its deliberate and unlawful campaign. It should be a warning to other companies to think before they launch into a campaign.”
HELMS have taken legal advice since the penalty was imposed. Their legal representative, when interviewed on Radio 4, suggested that their course of action was negligent rather than intentional, and blamed the excess of calls partly on a software fault that was not their fault.
How to Avoid a Regulatory Prosecution
Before a Company embarks upon a similar campaign they would be best advised to take some legal advice in relation to their plans. This could avoid the imposition of a very costly fine. Olliers Solicitors are specialists in defending regulatory prosecutions. If you are facing such a prosecution we would advise you contact Tim McArdle or you can contact us by clicking here.
