By Brian Davidson, CIPP/E

The General Regulatory Chamber, which allows rights of appeal against decisions of the UK Information Commissioner’s Office (ICO), has overturned an earlier £300,000 fine for the sending of unwanted text messages.

Christopher Niebel, joint owner of Tetrus Telecoms, was originally fined in November 2012 for sending hundreds of thousands of unwanted SMS text messages “on an industrial scale” from unregistered SIM cards seeking out potential claims for the mis-selling of PPI loans or for accidents without the consent of the recipient.

For the issue of a monetary penalty notice, the contravention is required to be serious and also likely to cause substantial damage or substantial distress. The tribunal considered that this contravention was unlikely to cause substantial damage or distress and rather the effect was likely to be widespread irritation. The tribunal also stated that the contravention was likely to lead to recipients incurring small charges for replying “Stop” to such SMS messages.

Additionally, the tribunal considered that the contravention should be focused on those individuals who complained to the ICO. As a result, the tribunal decision stated “we are therefore concerned with a contravention in which Niebel sent out 286 unwanted text messages.”

The ICO recently responded in its monthly newsletter that it was “disappointed” with the decision and it shall be appealing it, as well as “continuing our work with central government to toughen up the law in this area. This includes pushing forward a change to the law that would allow us to take action against companies whose unlawful marketing activities are causing nuisance or annoyance, rather than having to demonstrate substantial damage or distress.”

A copy of the Decision Notice is available here.

Brian Davidson, CIPP/E, is a privacy and information law advisor at Field Fisher Waterhouse, LLP.


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