Increased fines for nuisance calls in current draft of the Data Protection and Digital Information Bill

The current maximum fine of £500,000 for nuisance calls and texts has not been considered as a sufficient deterrent. The telecoms regulator, Ofcom, has estimated that some 41 million people in the UK may have received nuisance calls, text messages and emails during the summer of 2022 alone. In a bid to tackle unsolicited calls, the current draft of the Data Protection and Digital Information Bill ("the Bill") will increase fines for nuisance calls and texts to GDPR and Data Protection Act levels, at either 4% of global turnover or £17.5m, whichever is greater.

In the meantime, the ICO has remained proactive throughout 2022 and 2023, issuing fines to serial offenders. Just last month, the ICO issued a hefty fine of £130,000 to a recruitment company, Join the Triboo, after they sent out an eye-watering 107 million spam emails to an estimated 437,324 recipients in a 12-month period. The company's direct marketing campaign to unsuspecting individuals was a breach of the Privacy and Electronic Communications Regulations 2003 ("the PECR"). It came to light during an ICO investigation into Leads Work Limited, which was itself fined £250,000 for contravening the PECR by sending unsolicited direct marketing messages.

Earlier in the year, It's OK ltd was fined £200,000 by the ICO for a "sustained and exploitative campaign" of nuisance calls. The company made an estimated 1.7 million calls to people registered with the Telephone Preference Service (TPS) in under 12 months. The evidence suggested that not only were the calls unsolicited, but they were deliberately targeted at elderly individuals. Overall, however, the fine value is paltry in light of the sheer number of nuisance calls and texts.

Proposed changes in the Bill may signal a tougher approach to nuisance calls and texts. Whilst the changes won't put an end to nuisance calls, they should deter companies from the practice of unsolicited direct marketing.  The Bill will see the definition of "calls" amended to include all calls, whether or not they connect with the intended recipient. It will also see the definition of a "communication" expanded to include all communications which are "transmitted" rather than simply "exchanged or conveyed".  Alongside the hefty 3500% increase in maximum fines, it is hoped that there will be a renewed focus on nuisance calls and texts when the changes outlined in the Bill are introduced.

The ICO remains live to the impact of nuisance calls and texts stating that they "understand how distressing nuisance calls can be and that they are "committed to protecting the public and stopping nuisance marketers".  Whilst we await the introduction of the new legislation, organisations engaged in direct marketing should consult the ICO Guide to the Privacy and Electronic Communications Regulations (PECR). These Regulations were updated towards the end of 2022 to ensure that direct marketing practices are ethical and keep a close eye on the Bill as it makes its way through Parliament.

For more information please contact Aisling Byrne, Partner, Emma Woods, Solicitor or your usual Employment and Incentives Belfast team contact.

Date published: 24 May 2023.