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ICO issues record fine for nuisance marketing calls

A breach of the rules relating to unsolicited marketing has resulted in the Information Commissioner's Office issuing its highest fine ever against a company.Home Energy & Lifestyle Management Ltd A breach of the rules relating to unsolicited marketing has resulted in the Information Commissioner's Office issuing its highest fine ever against a company.

Home Energy & Lifestyle Management Ltd (HELM) was fined £200,000 after it 'recklessly' broke marketing call regulations.  The largest fine previously issued (in July 2013) for similar nuisance home energy marketing calls was £45,000.  HELM made 6 million automated calls relating to a solar panel marketing campaign.  The calls were often repeated and it was not always possible to connect to a person or to stop the calls, leading the recipients to feel powerless against the calls (or calls rapidly filled up answering machines).

The ICO has the authority, under section 55A(1) of the Data Protection Act 1998, to issue fines of up to £500,000 for serious contraventions of the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended. The conditions are:
1. there has been a “serious contravention” of PECR;
2. the contravention is likely to cause “substantial damage or substantial distress”; and
3. 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:
1. the contravention was “serious” given the volume and misleading nature of the calls;
2. it was likely to cause substantial damage or substantial distress taking into account the number and nature of complaints that the ICO received; and
3. HELM's actions were deliberate (whether or not HELM did intend to contravene Regulation 19 of PECR).

The level of fine is notable as being the highest ever fine issued by the ICO in relation to a breach of the ICO marketing rules, and it seems clear from the enforcement notice that it would have been higher had HELM not: (i) co-operated with the ICOs investigation; and (ii) made it clear it would not be running a similar marketing campaign in the future.

The ICO warned that other companies must think before they launch into a campaign of a similar nature, and HELM's behaviour was severely criticised as unacceptable, the ICO going so far as to describe the situation as "beyond belief".

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