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Pay as you go – the penalties for nuisance marketing just got easier

As part of the crackdown on organisations that make nuisance calls and send nuisance texts, the threshold for issuing fines has just been reduced.

Organisations should only send marketing texts or automated calls to people who have consented to these and they must not make live marketing calls to anyone that has opted out of receiving them.

Previously, the Information Commissioner’s Office (ICO) had to prove that the marketing calls or texts had caused ‘substantial damage or substantial distress’ before it was able to bring any action against the organisation.

Yesterday (6th April 2015) the legislation that governs electronic marketing, the Privacy and Electronic Communications Regulations 2003 (PECR), was amended to remove this prerequisite.

The Government is also looking at introducing measures to hold board level executives responsible for nuisance calls and texts.

Digital Economy Minister Ed Vaizey said: “This change will make it easier for the Information Commissioner’s Office to take action against offenders and send a clear message to others that harassing consumers with nuisance calls or texts is just not on.”

The ICO has the power to fine offenders up to £500,000 and Information Commissioner Christopher Graham welcomed the change which will make it easier to issue penalties.

He said:  “The rules around marketing calls have been a licence for spammers and scammers, and people are sick of them. This law change gives consumers the chance to fight back.”

Since January 2012, the ICO has taken enforcement action against nine companies with fines totalling £815,000. It is likely that the volume of penalties will increase as the ICO utilises this more user-friendly deterrent.

If you have any concerns about the way in which your organisation uses electronic marketing, we can help you ensure compliance with PECR and the Data Protection Act 2008.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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