Privacy, electronic communications and monetary penalties: new Upper Tribunal decision

Panopticon reported late last year that the First-Tier Tribunal overturned the first monetary penalty notice issued by the Information Commissioner for breaches of the Privacy and Electronic Communications Regulations 2003. This was the decision in Niebel v IC (EA/2012/0260).

The Information Commissioner appealed against that decision. The Upper Tribunal gave its decision on the appeal yesterday: see here IC v Niebel GIA 177 2014. It dismissed the Commissioner’s appeal and upheld the First-Tier Tribunal’s cancellation of the £300,000 penalty imposed for the sending of marketing text messages.

I appeared in this case, as did James Cornwell (also of the Panopticon fold), so I will not be offering an analysis of the case just now. With any luck, one of my colleagues will be cajoled into doing so before too long.

It is worth pointing out simply that this is the first binding decision on the meaning of the various limbs of s. 55A of the DPA 1998, which contains the preconditions for the issuing of a monetary penalty notice.

Robin Hopkins @hopkinsrobin


The Commissioner has this week issued an enforcement notice to the Labour Party in response to its act of making unsolicited automated marketing calls without consent to almost half a million people. The calls were made in June 2009 and were designed to encourage people to vote in the European elections. The ICO held that, notwithstanding their inherently political nature, the actions taken by the Labour Party amounted to unlawful ‘direct marketing’ for the purposes of the Privacy and Electronic Communications Regulations 2003. The enforcement notice requires the Labour Party to desist from making further automated calls without the recipients’ consent. Breach of the notice will amount to a criminal offence and could lead to prosecution. This is not the first time that a political party has received an enforcement notice in response to making automated calls. Similar notices have previously been served on the Conservatives, the Scottish National Party and the Liberal Democrats. See further the Commissioner’s press release on this issue.