The UK Information Commissioner’s Officer (“ICO”) has issued its largest fine to date in connection with using an automated calling system to make direct marketing calls.  The ICO found that Home Energy & Lifestyle Management Ltd (“HELM”), a green energy company that made millions of automated marketing calls in relation to “free” solar panels, recklessly contravened UK regulations, and fined the company £200,000.

UK rules on making automated calls are quite strict.  An organization is permitted to make a live unsolicited marketing call so long as it screens numbers against the Telephone Preference Service (“TPS”) register; an organization can only call someone listed on the TPS if that person has notified the organization that they do not object to its calls.  However, an organization is only permitted to make an automated call — i.e., a call made by an automated dialing system that plays a record message — if the person has specifically consented to receiving automated calls from that organization.  (See Regulation 19 of the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended (“PECR”), and the ICO’s guidance on Direct Marketing.)

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.

In this case, the ICO found that each of the conditions was satisfied:

  • The contravention was “serious” given the volume and misleading nature of the calls.  HELM made over six million recorded direct marketing calls to people without their prior consent.  This included repeat calls to the same person, sometimes on the same day, even when they had selected an option to be removed from the list.  The ICO also found that the calls were misleading because the solar panels were not necessarily free, as implied by the recorded message.  To make matters worse, HELM admitted during the investigation that it did not appreciate that a different PECR regulation applied to the sending or instigating of automated marketing calls compared to live calls.
  • The contravention was likely to cause substantial damage or substantial distress taking into account the number and nature of complaints that the ICO received.  242 people complained in a three month period.  The ICO cited several examples of the complaints received, including, “Waiting for phone call about terminally ill family member so I cannot ignore my phone but I feel this nuisance company have taken over my phone line! Please can something be done to stop these pests?”.  The ICO found that even if the distress likely to have been suffered by each affected individual was less than substantial, the cumulative impact would clearly pass the threshold of “substantial”.
  • Regarding the last leg of the test, the ICO quickly concluded that HELM did deliberately contravene Regulation 19 of PECR.

Regarding the assessment of the fine, it seems that it would have been higher had HELM not co-operated fully with the ICO’s investigation and confirmed that it would not run a similar marketing campaign in the future.

The ICO severely criticized HELM’s ignorance of the law (describing the situation as “beyond belief”), and has warned that this “should be a warning to other companies to think before they launch into a campaign”.

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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.