Rechtsanwältin, Senior Associate
Out-Law News | 06 Sep 2005 | 4:22 pm | 3 min. read
4's A Fortune Limited was found guilty of sending marketing messages to five mobile phones without the consent of the subscribers – in breach of Ireland's European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003. The law applies to phone and email spam.
The company – which describes itself as "Irelands first online casino-like cash game" – made a total of 165,000 calls, all to O2 customers; but the Commissioner's office is only empowered to investigate those calls that become the subject of complaints.
The calls were mostly by auto-diallers that hung-up after two rings. When recipients noticed a missed call on their phones, some of them called back to the landline number displayed. They were then put through to a recorded message which encouraged them to call a premium rate number and play a game to win money.
The rules came into force in Ireland in November 2003 and are very similar to Regulations that came into force in the UK in December 2003. They set out restrictions on unsolicited direct marketing by phone, fax, automated calling systems, email, SMS and MMS. Cold calling – the making of unsolicited calls without the prior consent of the recipient or the recipient being an existing customer – is forbidden.
The investigation into 4's A Fortune took a long time. It ran from March 2004 to December 2004, according to Senior Compliance Officer Seán Sweeney. He told OUT-LAW that in any case of this kind it will take around six months to gather the evidence. He also expressed sympathy for his counterparts in other European offices who have not taken action against spammers: it's difficult to prosecute spammers.
"This was the first case where we've had sufficient evidence to prosecute," said Sweeney. He explained that in other cases they had insufficient evidence to remove all reasonable doubt. "With email it's even more difficult than phone spam," he said. "We reckon we'd need to seize the terminal equipment to prove who sent the email."
He did point out that another offence – that of causing an email to be sent – could be applied to a company that paid for an email promotion if someone can be shown to profit from the spam; but proving who sent it is much more difficult.
4's A Fortune Limited faced a potential fine of up to €3,000 per message sent, but was fined only €300 by the court for each of the five calls complained of – a total of €1,500. The company was also ordered to pay costs of €1,000.
Sweeney added, "The judge said she was surprised that no custodial sentence was available in the Regulations – although she added that it would not have been appropriate in the circumstances of this case."
The judge took into account that this was the company's first offence, that it had ceased its marketing tactic when it became aware of the Commissioner's investigation, and that it had eventually cooperated with the Commissioner's office. The company pled guilty to the offence in July and sentencing took place last week.
Custodial sentences may come to Ireland. The country's Department of Communication has expressed support for their application to spam offences – although Sweeney points out that this would require the new primary legislation to replace the existing Regulations, something that would likely take at least two years.
Sweeney's view is that there is no immediate need to attach a custodial sentence to spamming offences in Ireland. He says that complaints have been reducing since the 4's A Fortune investigation, that marketing companies are showing more awareness of their obligations.
If that changes in the long term, i.e. if home-grown spam becomes a bigger problem, it may be necessary to look at custodial sentences, he suggests.
"The fine against 4's A Fortune was at the low end of the scale, but it was appropriate. It was a first offence and they did cooperate at a fairly early stage," said Sweeney. "I think the publicity was more damaging to them than the penalty."
In the meantime, it is unlikely that this action signals the start of a crackdown on Irish spammers. Sweeney is hoping for technical solutions to spam, not legal solutions.
Where it's home-grown email spam, it's usually been easy to resolve because it tends to be accidental; a one-off. "These are not cases that we're likely to take to court," he says. Repeat offenders would merit a stiffer penalty; but he points out that most email spam is coming from overseas. The spammers just move to the countries with laws that suit them – and all the Commissioners in Europe are powerless to stop that.
Rechtsanwältin, Senior Associate