This post was written by Cynthia O’Donoghue.

The First Tier Tribunal (Information Rights) granted appeal against a monetary penalty notice of £300,000 issued by the Information Commissioner in the case of Christopher Niebel v The Information Commissioner (EA/2012/2060), ruling that the penalty notice should be cancelled.

The monetary penalty notice had been issued against Christopher Niebel, owner of Tetrus Telecoms, for sending unsolicited ‘spam’ text messages seeking potential claims for mis-selling PPI loans or accidents. The message were sent from unregistered sim cards that allowed Mr. Niebel to conceal himself as the sender. The ICO found Mr Niebel’s actions to be in breach of the Privacy and Electronic Communication (EC Directive) Regulations 2003 (the PECR Regulations). Under Regulation 22, it is unlawful to use text messages for direct marketing unless the recipient has either asked for or specifically consented to such a communication. Regulation 23 also requires that the identity of the sender should be clear, and the text must contain a valid address which permits the recipient to contact the sender or request that the text messages stop. The ICO found that Mr. Niebel obtained neither permission nor consent to send the text messages, and that he withheld his name and address.

The PECR Regulations incorporate s.55A of the Data Protection Act 1998. This section gives ICO enforcement powers to impose monetary penalties for breach of the PECR Regulations up to a maximum of £500,000, provided the contravention is serious and of a kind likely to cause a victim substantial damage or substantial distress.

In the First Tier Tribunal, NJ Warren found that the ICO monetary penalty issued to Mr Niebel over-exaggerated the nature and scale of his contravention of the PECR Regulations to involve hundreds of thousands of messages, when in fact it only related to 286 texts. Furthermore, NJ Warren did not consider the minor irritation of having to delete a spam text or the small charge to respond ‘STOP’ enough to be considered likely to cause a receiver ‘substantial damage’ or ‘substantial distress’. As a result, it was held that s.55A (1)(b) of the DPA had not been satisfied, and therefore the ICO had insufficient grounds to issue the monetary penalty notice. NJ Warren therefore made decision to cancel the penalty notice in this case.