Blindly Fumbling for Consent: PECR and Optical Express

PECR, long the runt of the information law litter, is beginning to take on a life of its own and, just as importantly, the ICO is beginning to really target spam texters and cold-callers. Recent changes to the enforcement provisions of PECR only assist in this task.

The ICO issued an Enforcement Notice against Optical Express in December 2014. Over 4,600 people registered concerns about Optical Express (Westfield) Limited in just seven months reporting the unsolicited messages to the mobile phone networks’ Spam Reporting Service indicating they had not given permission for the company to use their details for marketing. The Notice obliged OE to cease sending unsolicited texts to individuals without their consent.

OE appears not to have seen any problem with texting people who had never previously dealt with it, believing they had sufficient consent. Whether their laser eye surgery offers would have assisted this possible case of Nelsonian blindness is unclear.

The Tribunal has now delivered a lengthy judgment dismissing OE’s appeal: Optical Express v Information Commissioner (EA/2015/0014). Much of the initial part of the judgment is taken up with dismissing various grounds relating to the ICO’s reasoning process and the extent of the reasons set out in the Notice. That will be of some interest to practitioners, but the diligent reader is referred to the judgment itself for the discussion. In particular, the Tribunal considered that the ICO had perfectly adequately explained itself, and OE understood what was being said and why. The fact of a disagreement over the correct interpretation of PECR did not entitle OE to require a higher level of reasoning.

The Tribunal took a robust line in relation to the evidence upon which the ICO was entitled to rely, and made clear that the burden of proof fell on OE to show that consent had been given once the complaints were identified. The ICO would have no way of working out whether consent had been given – that was something within the knowledge of OE alone. A very considerable number of the complaints clearly identified the texts as spam and unwanted. The ICO had also managed to trace three individual recipients who were able to give witness statements that they had not provided any express consent to OE and were not aware of how OE had their information. When OE complained that only these three could establish a case and such a small number did not warrant enforcement action, the Tribunal dismissed this: the ICO was entitled to rely on the full 4600 and in any event would have been entitled to basis a Notice on just three individuals where their cases showed unlawful processes of obtaining data.

The legal point of interest was around the approach to consent under PECR. The Tribunal made clear that consent has to be provided to the sender: thus businesses harvesting lists acquired from third parties will not have consent to text the recipient. Here, OE appeared to have acquired the numbers from Thomas Cook customers who had made the mistake of filling in a survey, which told them that their details might be shared but did not say that OE might text them. How, asked the Tribunal, could this constitute OE fairly obtaining the data in DP terms? The customer has not solicited contact from OE, and contact is therefore in breach of PECR. The Tribunal put the point this way at [86]:

when consent was obtained by Thomas Cook or whomever, it was not stipulated (or at least it has not been shown to have been stipulated) that the personal data would be processed by OE. Neither was the marketing of specific types of product stipulated. In my opinion it should say something about the products to be marketed if they are different from the business of, for example, Thomas Cook. This falls under the “to guarantee fair processing” category. If the data subject doesn’t know what other products might be marketed then how can he exercise his right to object to some of them whilst being happy to receive others?”

Worth a read for the discussion around the consent provisions, Optical Express now joins something of a line of Tribunal decisions roundly condemning spammers, and giving the ICO considerable latitude in how to present its case. This was not, of course, a monetary penalty notice case (doubtless because at the time the Niebel decision effectively barred such an MPN), but MPNs will doubtless follow in the event of future breaches.

It is always a good idea to ensure full and unambiguous consent where PECR is concerned. And if that means putting your glasses on to do so, so be it.

Robin Hopkins appeared for the ICO.

Christopher Knight