As 2015 draws to a close, the Information Commissioner’s Office has fined the Telegraph Media Group Ltd £30,000 for a serious breach of the UK Privacy and Electronic Communications Regulations (“PECR”). The PECR set out specific rules in respect of electronic communications. In particular, the PECR prevent the sending of unsolicited marketing and advertising by electronic means without the individual’s consent to such marketing and advertising.
On the day of the general election earlier this year, the Telegraph Media Group sent out its daily editorial e-bulletin which included a letter from the editor of the Telegraph newspaper urging its readers to vote Conservative. Whilst subscribers to the Telegraph Media Group had signed up, and hence consented to receiving, the editorial e-bulletin, the ICO found that by promoting a particular election campaign the nature of the e-bulletin had changed from an editorial communication to a ‘marketing communication’.
In order to amount to valid consent to receiving a particular electronic communication under the PECR, consent must be knowingly given, clear, and specific. In the circumstances, the Telegraph Media Group did not have the specific consent of the readers to send such a marketing communication and the communication was sent in breach of the PECR. The ICO Head of Enforcement considered that the Telegraph had been negligent in sending the letter from the editor as part of the e-bulletin and explained that “people signed up to The Telegraph’s email service so they could catch up on the news or find out about subjects they were interested in. They did not expect to be told who they should be voting for.”
The ICO has the power to impose a monetary penalty on a data controller of up to £500,000 in respect of such a breach. However, the relatively low amount of £30,000 was determined by the fact that only 17 complaints were received, and that the email in question was a late addition to the usual mailing. The ICO acknowledged that there was pressure to distribute it quickly and little time to properly consider whether it should be included in the mailing.
This case serves as a reminder of the scope of the PECR and the enforcement action open to the ICO for those who ignore the rules.
