A telephone call made for direct marketing purposes is against the law when it is made to the number of a telephone subscriber who has registered with the Telephone Preference Service (‘TPS’) as not wishing to receive such calls on that number, unless the subscriber has notified the caller that he does not, for the time being, object to such calls being made on that line by that caller: see regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended (‘PECR’).

The appellant in Amber UPVC Fabrications v IC (EA/2014/0112) sells UPVC windows and the like. It relies heavily on telephone calls to market its products and services. It made nearly four million telephone calls in the period May 2011 to April 2013, of which approximately 80% to 90% were marketing calls.

Some people complained to the Information Commissioner about these calls. The Commissioner found that the appellant had committed serious PECR contraventions – he relied on 524 unsolicited calls made in contravention of PECR. The appellant admitted that it made 360 of the calls. The appellant was issued with a monetary penalty under section 55A of the Data Protection Act 1998, as incorporated into PECR.

The appellant was issued with a monetary penalty to the value of £50,000. It appealed to the Tribunal. Its appeal did not go very well.

The Tribunal found the appellant’s evidence to be “rather unsatisfactory in a number of different ways. They took refuge in broad assertions about the appellant’s approach to compliance with the regulations, without being able to demonstrate that they were genuinely familiar with the relevant facts. They were able to speak only in general terms about the changes to the appellant’s telephone systems that had been made from time to time, and appeared unfamiliar with the detail. They had no convincing explanations for the numerous occasions when the appellant had failed to respond to complaints and correspondence from TPS or from the Commissioner. The general picture which we got was of a company which did as little as possible as late as possible to comply with the regulations, and only took reluctant and belated action in response to clear threats of legal enforcement.”

The Tribunal set out in detail the flaws with the appellant’s evidence. It concluded that “the penalty was appropriate (or, indeed, lenient) in the circumstances, and the appellant has no legitimate complaint concerning its size”.

This decision is notable not only for its detailed critique (in terms of PECR compliance) of the appellant’s business practices and evidence on appeal, but also more widely for its contribution to the developing jurisprudence on monetary penalties and the application of the conditions under section 55A DPA. Thus far, the cases have been Scottish Borders (DPA appeal allowed, in a decision largely confined to the facts), Central London Community Healthcare NHS Trust (appeal dismissed at both First-Tier and Upper Tribunal levels) and Niebel (PECR appeal allowed and upheld on appeal).

The Amber case is most closely linked to Niebel, which concerned marketing text messages. The Amber decision includes commentary on and interpretation of the binding Upper Tribunal decision in Niebel on how the section 55A conditions for issuing a monetary penalty should be applied. For example:

PECR should be construed so as to give proper effective to the Directive which it implements – see the Tribunal’s discussion of the Marleasing principle.

The impact of the ‘contravention’ can be assessed cumulatively, i.e. as the aggregate effect of the contraventions asserted in the penalty notice. In Niebel, the asserted contravention was a specified number of text messages which had been complained about, but the Tribunal in Amber took the view that, in other cases, the ICO need not frame the relevant contravention solely by reference to complaints – it could extrapolate, where the evidence supported this, to form a wider conclusion on contraventions.

Section 55A requires an assessment of the “likely” consequences of the “kind” of contravention. “Likely” has traditionally been taken to mean “a significant and weighty chance”, but the Tribunal in Amber considered that, in this context, it might mean “more than fanciful”, ie, “a real, a substantial rather than merely speculative, possibility, a possibility that cannot sensibly be ignored”.

The “kind” of contravention includes the method of contravention, the general content and tenor of the communication, and the number or scale of the contravention.

“Substantial” (as in “substantial damage or substantial distress”) probably means “more than trivial, ie, real or of substance”. Damage or distress can be substantial on a cumulative basis, i.e. even if the individual incidents do not themselves cause substantial damage or substantial distress.

“Damage” is different to “distress” but is not confined to financial loss – for example, personal injury or property interference could suffice.

“Distress” means something more than irritation.

The significant and weighty chance of causing substantial distress to one person is sufficient for the threshold test to be satisfied.

Where the number of contraventions is large, there is a higher inherent chance of affecting somebody who, because of their particular unusual circumstances, is likely to suffer substantial damage or substantial distress due to the PECR breach.

The Amber decision is, to date, the most developed analysis at First-Tier Tribunal level, of the monetary penalty conditions. The decision will no doubt be cited and discussed in future cases.

11KBW’s James Cornwall appeared for the ICO in both Amber and Niebel.

Robin Hopkins @hopkinsrobin