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Data Protection Commission

Case Study 11 - Prosecution of 4's A Fortune Ltd – unsolicited marketing communications

A number of complaints were made to my office in March 2004 about a marketing campaign that promoted a game of fortune by contacting mobile phones. In all cases, the mobile phone rang briefly and did not allow the complainants adequate time to answer before the call terminated. A 'missed call' was recorded and the phone listed a Dublin based fixed line number.  When a person phoned that number, a pre-recorded message was played in which callers were invited to phone a premium rate number in order to avail of an offer to claim €50 credit for use in the 4's A Fortune game.

The provisions of Statutory Instrument 535 of 2003 [European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003] took effect in November 2003. Regulation 13 refers to unsolicited communications, making it an offence in certain circumstances to make marketing calls or send marketing messages. The campaign under investigation effectively resulted in a "call me" message being left on subscribers' phones, the sole purpose of the message being to encourage subscribers to phone another number and thereby receive a direct marketing message. This was contrary to Regulation 13(1) (b) which states

"A person shall not use or cause to be used any publicly available electronic communications service to send an unsolicited communication for the purpose of direct marketing by means of electronic mail, to a subscriber, who is a natural person, unless the person has been notified by that subscriber that for the time being he or she consents to the receipt of such a communication".

As failure to comply with Regulation 13(1) (b) is an offence, once I had decided that an offence appeared to have been committed, it was necessary to gather all relevant material and then make an assessment of whether or not a prosecution was appropriate.  Despite indications of cooperation from the data controller, it was still necessary to obtain evidence in case the matter was brought to Court.  I exercised my powers to issue Information Notices to a number of telecommunication service providers to establish the ownership of the phone numbers involved in the campaign, as well to establish whether those numbers had contacted the complainants' phone numbers during the period under investigation.

The phone numbers used in the promotion were registered to Realm Communications Limited, and these lines were used on behalf of 4's A Fortune Limited for the purpose of this promotion. Both companies shared the same premises.  It was also established that 165,000 calls were made during the promotion and that the complainants' numbers had been phoned by Realm Communications / 4's A Fortune.  With this evidence, it appeared that there was a substantial case to be answered. Two of my authorised officers visited the offices of Realm Communications / 4's A Fortune in order to question the director  Mr Tom Higgins.  As he was not present, the officers went to his home address. Although Mr Higgins was preparing for a press conference on an unrelated matter, he still found time to discuss the matter.  As a result of that meeting, Mr Higgins attended my office and volunteered a statement under caution. He also indicated a willingness to enter a guilty plea if the matter came to Court.

Following assessment of all the material, it was decided that there was sufficient evidence to demonstrate that an offence had been committed in respect of five of the complainants. In the case of the other four complainants, there were doubts over the existence of consent to make those calls and doubts over whether calls had been made.  It is important to note that although I had evidence that the campaign involved the contacting of 165,000 subscribers, I can only prosecute in those cases where there is no consent from the recipient to receiving such calls.  Therefore, I am restricted to prosecution in relation to specific complaints from individuals.

In March 2005 summonses were issued in respect of five offences and 4's A Fortune Limited entered guilty pleas in July 2005. At the final hearing at Court 54 on 1 September 2005, 4's A Fortune was convicted of committing five offences of failing to comply with Regulation 13(1) (b) and fined €300 out of a maximum of €3,000 on each count, plus costs of €1,000.

This was the first prosecution brought under these Regulations.  The technical nature of the evidence required was a factor in the time taken to finalise the investigation, but I believe that the experienced gained from this case will result in speedier investigations in future.  I am pleased to note that the level of complaints relating to marketing to mobile phone numbers has declined significantly since this case was publicised and am satisfied that this case has sent a positive signal to marketers that I will not be reluctant to prosecute those who fail to respect the privacy rights of others.