In October 2023, the DPC received notification from an individual regarding unsolicited marketing SMS messages received from Pulse Gym, trading as Energie Fitness Dublin 8. An investigation was launched during which Pulse Gym explained that when a member signed up online, they agreed to Pulse Gym’s terms and conditions, which included a reference to giving consent to receive marketing materials by electronic means. 

The DPC requested a copy of the consent referred to under Article 7 of the GDPR, but Pulse Gym was unable to provide such a copy. The DPC highlighted that consent for marketing is required to be “freely given, specific, informed and unambiguous”, and that Pulse Gym was not permitted to “bundle” consent for processing of individuals’ personal data for different purposes. 

Pulse Gym also confirmed during the investigation that the opt-out attempts made by the individual had been unsuccessfully implemented as there was a  fault in the service provider’s software. 

A warning had previously been issued to Pulse Gym following an investigation of a similar complaint in July 2023. As part of this warning, the DPC had made Pulse Gym aware of their requirements to ensure that their mailing list only contained details of individuals who had explicitly consented to receive marketing communications and to ensure their opt-out function was operational and opt out requests were respected. However, upon receipt of this further complaint in October 2023, it became apparent that not all changes identified in the DPC’s warning letter had been implemented. As a result, the DPC decided to move to prosecution proceedings in this instance.

Pulse Gym pleaded guilty to one charge of sending unsolicited marketing SMS messages at Dublin Metropolitan District Court on 27th May 2024 under Regulation 13 of S.I. No. 336/2011 - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011. In lieu of a conviction and fine, Judge Halpin applied the Probation Act and the company was instructed to make a donation of €700 to the Little Flower Penny Dinners charity and to pay the DPC’s legal  costs in full.