|
|
 |
News & Publications - News Article
| |
| Unsolicited Marketing - Increased Penalties, December 2008 |
The sending of unsolicited marketing communications to individuals and to corporate bodies is governed by the Electronic Privacy Regulations 2003 (SI 535/2003). Effectively, these Regulations provide that the prior consent of individuals (an opt-in) is required in order to market to those individuals by e-mail, SMS, fax or automated calling machine. Cold-calling is allowed as long as the individual has a cost-free and easy way of opting-out from such marketing. Corporate bodies have the right to opt-out from any of these forms of marketing.
As a result of changes which came into effect on 13 December 2008 (introduced by SI 526/2008), the penalties for breach of the Regulations have increased significantly.
The key features of the revised Regulations are as follows:
- On summary conviction, the maximum potential fine has been increased from €3,000 to €5,000. These proceedings can be taken by the Data Protection Commissioner himself.
- The Regulations also now provide for prosecution on indictment by the Director of Public Prosecutions. In such circumstances, the following penalties apply:
- corporate bodies may be fined up to €250,000 or 10% of the corporate body’s turnover, if greater; and
- individuals may be fined up to €50,000.
Given that each unsolicited communication, e-mail or phonecall sent in breach of the Regulations constitutes a separate offence, the aggregate financial penalty, not to mention the negative PR consequences, could be very high.
- Where the breach complained of amounts to a criminal offence, the offending party will not be given the opportunity to seek an amicable resolution or to comply with an enforcement notice. This therefore allows the Data Protection Commissioner to proceed straight to prosecution.
- Where an offence is committed by a corporate body, individual officers within the company (eg director, manager or secretary) may also be guilty of an offence if it can be shown that the offence was committed with the consent or connivance of that officer or if it is attributable to the neglect of that officer.
Viewed in conjunction with recent convictions secured by the Data Protection Commissioner for unsolicited text marketing, the increased penalties and the possible absence of an opportunity to remedy a breach before prosecution suggest that a zero tolerance attitude may be adopted for breach of the Regulations. As such, individuals or companies who engage in direct marketing need to be conscious of their legal obligations in this regard.
If you have any questions in relation to the above, please feel free to contact any of the following:
| | |
|
| |
|
| |
|
| |  |
|
|
|
