The UK’s data protection regulator, the Information Commissioner’s Office (“ICO”), has imposed a fine of £350,000 on Prodial Ltd (“Prodial”) for making over 46 million unsolicited automated telephone calls to generate leads in relation to payment protection insurance refunds.  This is the highest fine issued by the ICO to date.

The ICO investigated the marketing activities of Prodial after receiving over 1,100 complaints in the space of seven months.  Prodial was found to have breached the UK’s Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended (“PECR”), by making automated marketing calls — i.e., calls made by an automated dialling system that plays a recorded message — to people without their consent.

The ICO has the authority, under section 55(1) of the Data Protection Act 1998, to issue fines of up to £500,000 for serious contraventions of PECR.  The conditions are: (a) there has been a “serious contravention” of PECR; (b) the contravention is likely to cause “substantial damage or substantial distress”; and (c) the contravention was deliberate, or the person knew or ought to have known that there was a risk the contravention would occur and that it would cause substantial damage or substantial distress but failed to take reasonable steps to prevent it.

The ICO justified its record-breaking fine in this case on the basis that:

  • The contravention of PECR was clearly serious given the sheer number of automated marketing calls made within a short time period and the number of complaints received by the ICO.  Prodial made repeat calls to people, sometimes even during the same day, and failed at times to allow the recipients of the calls to speak to a person or to opt-out from subsequent calls. In addition, Prodial was not identified as the instigator of the calls, making it hard for people to report the company to the ICO.
  • Prodial deliberately engaged in a marketing campaign on a massive scale, even if it did not deliberately intend to cause distress.  According to the ICO’s press release, the company was aware that it was acting in breach of the law, as once the ICO become involved, the company was placed into voluntary liquidation by one of its directors.
  • The monetary penalty in the case was appropriate to encourage compliance with PECR and to “send a clear message to other firms that this type of law-breaking will not pay.”  The ICO also considered the fact that Prodial obtained a commercial advantage from its breach of the law by selling the personal data collected during the calls to claims management companies and hence potentially producing a turnover of almost £1 million from the marketing campaign.

The ICO’s decision in this case is consistent with the regulator’s recent trend for taking a strict stance against deliberate and clear violations of the law and for going after the worst offenders.  Only last October the ICO imposed a hefty fine of £200,000 on a company making automated marketing calls in breach of the UK regulations, as we reported here.  The ICO has also recently handed a stop order on a company co-ordinating millions of unsolicited automated calls, requiring the company to stop or face legal action, and warning other nuisance callers that “there’s nowhere to hide” (see ICO news report here).

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Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.