A recent decision in the first tier information rights tribunal provided a reminder to businesses that they are legally obliged to check the Telephone Preference Service (TPS) before calling individuals, without their consent, for direct marketing purposes. The tribunal upheld a monetary penalty notice for £50,000 for failure to comply with the rules on unsolicited direct marketing calls.
Businesses that carry out direct marketing campaigns should keep records of consumer consents and suppression lists. This decision demonstrates that the ICO will be able to cast its net wider than to just the number, content and tenor of the calls and can consider a broader course of conduct, including business practices. Businesses should, therefore, take seriously the need to keep up-to-date and accurate records, evidence of staff training and overall compliance in relation to direct marketing, in case of a complaint or an ICO investigation.
The decision also adds to the discussion on what constitutes substantial damage or substantial distress under section 55A. The Department of Culture, Media and Sport is consulting on proposals to lower or remove the threshold for consumer harm, to enable the Information Commissioner to bring enforcement action against those who breach the regulations. The consultation focuses on live unsolicited direct marketing calls and SMS text messages, but the proposals will also apply to automated recorded calls, fax messages, email, identification of sender (when concealed) for email, and the information regulations.
For a checklist highlighting the key data protection issues a business should consider when carrying out direct marketing or for more information, please contact our commercial team on 01737 854 500 or find out more here.