ICO - Leads Work Limited (Monetary Penalty): Difference between revisions
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The UK DPA fined Leads Work Limited approximately €288,000 for sending unsolicitated direct marketing communication to individual subscribers. This breached Regulation 22 of the PECR. | The UK DPA (ICO) fined Leads Work Limited approximately €288,000 for sending unsolicitated direct marketing communication to individual subscribers. This breached Regulation 22 of the PECR. | ||
== English Summary == | ==English Summary== | ||
=== Facts === | ===Facts=== | ||
Leads Work Limited (LWL) operates within the "multi-level marketing" sector. It enlists downstream recruits under the Avon band name. | Leads Work Limited (LWL) operates within the "multi-level marketing" sector. It enlists downstream recruits under the Avon band name. | ||
| Line 67: | Line 67: | ||
LWL estimated that between May 2019 and May 2020, around 25 million texts were sent to individuals whose personal data was collected from the above websites. | LWL estimated that between May 2019 and May 2020, around 25 million texts were sent to individuals whose personal data was collected from the above websites. | ||
=== Dispute === | ===Dispute=== | ||
Is sending direct marketing texts to individuals without their consent in breach of Regulation 22 PECR? | Is sending direct marketing texts to individuals without their consent in breach of Regulation 22 PECR? | ||
=== Holding === | ===Holding=== | ||
The UK DPA recalled the wording of Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), as well as the definition of consent under Article 4(11) GDPR. | The UK DPA recalled the wording of Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), as well as the definition of consent under Article 4(11) GDPR. | ||
| Line 81: | Line 81: | ||
As a result of this infringement, the ICO imposed a fine of £250,000 (approx. €288,000) on Leads Work Limited. | As a result of this infringement, the ICO imposed a fine of £250,000 (approx. €288,000) on Leads Work Limited. | ||
== Comment == | ==Comment== | ||
''Share your comments here!'' | ''Share your comments here!'' | ||
== Further Resources == | ==Further Resources== | ||
''Share blogs or news articles here!'' | ''Share blogs or news articles here!'' | ||
== English Machine Translation of the Decision == | ==English Machine Translation of the Decision== | ||
The decision below is a machine translation of the English original. Please refer to the English original for more details. | The decision below is a machine translation of the English original. Please refer to the English original for more details. | ||
Revision as of 18:45, 14 April 2021
| ICO - Leads Work Limited (Monetary Penalty) | |
|---|---|
 | |
| Authority: | ICO (UK) |
| Jurisdiction: | United Kingdom |
| Relevant Law: | Article 4(11) GDPR Regulation 22 Privacy and Electronic Communications (EC Directive) Regulations 2003 |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 01.03.2021 |
| Published: | 05.03.2021 |
| Fine: | 250000 GBP |
| Parties: | Leads Work Limited |
| National Case Number/Name: | Leads Work Limited (Monetary Penalty) |
| European Case Law Identifier: | n/a |
| Appeal: | n/a |
| Original Language(s): | English |
| Original Source: | ICO (in EN) |
| Initial Contributor: | n/a |
The UK DPA (ICO) fined Leads Work Limited approximately €288,000 for sending unsolicitated direct marketing communication to individual subscribers. This breached Regulation 22 of the PECR.
English Summary
Facts
Leads Work Limited (LWL) operates within the "multi-level marketing" sector. It enlists downstream recruits under the Avon band name.
The UK DPA (Information Commissioner's Office or ICO) received various complaints from individuals concerning text messages/SMS sent under the Avon name. During the Covid-19 pandemic, individuals complained again about Avon sending them unsolicited text messages. Between April 2020 and May 2020, 835 complaints of this nature were recorded by the ICO.
Upon investigating further, the ICO identified LWL as the sender of these messages. The ICO notified LWL of the growing complaints concerning these texts. LWL responded to the investigation with information on how they acquired the individuals' data: by purchasing this from third parties and through a website (avon.leadsword.co.uk).
The ICO identified that the core data supplier was from an organisation who's website had an opti-in , a privacy notice and an option to unsubscribe. LWL was included as one of the third parties with who data was shared. However, LWL was not included within the list of organisations from whom individuals could expect marketing from. Additionally, it was not possible for individuals to submit details without selecting a marketing channel. The website was also vague, confusing and lengthy.
The ICO also identified other websites that contributed to collecting personal data used by LWL to send direct marketing SMS. LWL stated that lawyers had create the website's legal framework and believed it to be compliant with the legal requirements.
LWL estimated that between May 2019 and May 2020, around 25 million texts were sent to individuals whose personal data was collected from the above websites.
Dispute
Is sending direct marketing texts to individuals without their consent in breach of Regulation 22 PECR?
Holding
The UK DPA recalled the wording of Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), as well as the definition of consent under Article 4(11) GDPR.
It then went on to clarify that consent to direct marketing was not freely given, specific or informed because the website indicating LWL as a recipient of personal data was vague, confusing and lengthy.
Similar conclusions were reached regarding other websites used to collect personal data used for direct marketing purposes by LWL. These websites had vague consent statements and did not refer to LWL in their policies (listing Avon instead in certain cases). Even where Avon was listed, the ICO highlighted that individuals could not be reasonably expected to know that Avon was linked to LWL. Therefore, consent was not informed and specific.
The ICO therefore concluded that LWL relied on invalid consent to send direct marketing texts to individuals. It found that LWL was in breach of Regulation 22 of the PECR. The UK DPA highlighted the gravity of the contravention due to the amount of messaged sent without the recipients' consent. It also noted LWL's deliberate or foreseeable infringement of the law without taking reasonable steps to prevent them.
As a result of this infringement, the ICO imposed a fine of £250,000 (approx. €288,000) on Leads Work Limited.
Comment
Share your comments here!
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the English original. Please refer to the English original for more details.
•
ICO.
Information Commissioner's Office
DATA PROTECTION ACT 1998
SUPERVISORY POWERS OF THE INFORMATION COMMISSIONER
MONETARY PENALTY NOTICE
To: Leads Work Limited
Of: Suite C Underwood House, 235 Three Bridges Road, Crawley,
West Sussex RH10 1LU
1. The InformationCommissioner ("Commissioner")has decided to issue
Leads Work Limited ("LWL") with a monetary penalty under section
SSA of the Data Protection Act 1998 ("DPA"). The penalty is in relation
to a serious contravention of regulation 22 of the Privacy and Electronic
Communications (EC Directive) Regulations 2003 ("PECR").
2. This notice explains the Commissioner's decision.
Legal framework
3. LWL, whose registered office is given above (companies house
registration number: 10853169), is the organisation (person) stated in
this notice to have transmitunsolicited communicatioby means
of electronic mail to individual subscribers for the purposes of direct
marketing contrary to regulation 22 of PECR.
4. Regulation 22 of PECRprovides that:
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"(l)This regulation applies to the transmission of unsolicited
communications by means of electronic mail to individual subscribers.
(2) Except in the circumstances referred to in paragraph (3), a person
shall neither transmitnor instigate the transmission of, unsolicited
communications for the purposes of direct marketing by means of
electronic mail unless the recipient of the electronic mail has previously
notified the sender that he consents for the time being to such
communications being sent by, or at the instigation of, the sender.
(3) A person may send or instigate the sending of electronic mail for
the purposes of direct marketing where -
(a) That person has obtained the contact details of the recipient of
that electronic mail in the course of the sale or negotiations for
the sale of a product or device to that recipient;
(b) The direct marketing is in respect of that person's similar
products and services only; and
(c) The recipient has been given a simple means of refusing (free of
charge except for the costs of transmission of the refusal) the
use of his contact details for the purposes of such direct
marketing, at the time that the details were initially collected,
and, where he did not initially refuse the use of the details, at the
time of each subsequent communication.
(4) A subscriber shall not permit his line to be used in contraventofn
paragraph (2)."
5. Section 122(5) of the DPA 2018 defines "direct marketing" as "the
communication (by whatever means) of any advertising material which
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is directed to particular individualThis definition also applies for the
purposes of PECR.
6. "Electronic mail" is defined in regulation 2(1) PECRas" any text, voice,
sound or image sent over a public electronic communications network
which can be stored in the network or in the recipient's terminal
equipment until it is collected by the recipient and includes messages
sent using a short message service".
7. Consent is defined in Article 4(11) the General Data Protection
Regulation 2016/679 as "any freely given, specific, informed and
unambiguous indication of the data subject's wishes by which he or
she, by a statement or by a clear affirmativaction, signifies
agreement to the processing of personal data relating to him or her".
8. Section SSA of the DPA (as amended by the Privacy and Electronic
Communications (EC Directive)(Amendment) Regulations 2011 and the
Privacy and Electronic Communications (EC Directive) (Amendment)
Regulations 2015) states:
"(l) The Commissioner may serve a person with a monetary penalty if
the Commissioner is satisfied that -
(a) there has been a serious contraventionof the requirements
of the Privacy and Electronic Communications (EC
Directive) Regulations 2003 by the person, and
(b) subsection (2) or (3) applies.
(2) This subsection applies if the contraventiwas deliberate.
(3) This subsection applies if the person -
(a) knew or ought to have known that there was a risk that
the contravention would occur, but
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(b) failed to take reasonable steps to prevent the
contravention."
9. The Commissioner has issued statutory guidance under section SSC (1)
of the DPA about the issuing of monetary penalties that has been
published on the ICO's website. The Data Protection (Monetary
Penalties)(Maximum Penalty and Notices) Regulations 2010 prescribe
that the amount of any penalty determined by the Commissioner must
not exceed £500,000.
10. PECRimplements European legislation (Directive 2002/58/EC) aimed at
the protection of the individual's fundamentright to privacy in the
electronic communications sector. PECRwas amended for the purpose
of giving effect to Directive 2009/136/which amended and
strengthened the 2002 provisions. The Commissioner approaches PECR
so as to give effect to the Directives.
11. The provisionsof the DPA remain in force for the purposes of PECR
notwithstanding the introductioof the Data Protection Act 2018 (see
paragraph 58(1) of part 9, Schedule 20 of that Act).
Background to the case
12. LWL is a lead generation company which operates primarily in the
'multi-levemarketing' sector. It generates leads under the Avon brand
for the purpose of enlisting downstream recruits, and which are passed
directly to independent Avon sales representatives.
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13. LWL first came to the attention of the Commissioner in connection with
complaints about text messages seemingly sent by Avon Cosmetics
Limited ("Avon"). The investigatifound that Avon did not send or
instigate the texts. LWL were contacted, but not investigated at that
time.
14. LWL came to the attention of the Commissioner again during the Covid-
19 pandemic, when a significant number of complaints were received
about the following text message:
In lockdown and want to earn extra cash? Avon is now FULLY ONLINE,
FREE to do and paid weekly. Reply with your name for info. 18+ only.
Text STOP to opt out.
15. Between 14 April 2020 and 14 May 2020, 835 complaints were received
by the 7726 SPAM reporting tool. Significant daily totals of complaints
were also seen, including 329 on 13 May 2020, 345 on 14 May 2020
and 370 on 15 May 2020.
16. Given the rapid rise in complaint volumes, and as LWL were known to
send messages of this type, the Commissioner contacted LWL by
telephone on 13 May 2020, who confirmed that the messages had been
sent by LWL. This was subsequently supported by evidence from LWL's
mobile network provider.
17. On 15 May 2020, the ICO sent an investigatioletter to LWL detailing
the Commissioner's concerns regarding LWL's compliance with PECR,
and containing a number of enquiries. The letter attached an index of
complaints received both by the 7726 SPAM reporting service, and by
the ICO.
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18. On 4 June 2020, the ICO received a response from LWL. This provided
a list of CLI's used by LWL and text volumes, identified the bodies of 19
different texts sent, and confirmation that texts were sent internally
through a platform operated by LWL. LWL explained that data was both
purchased from third parties and driven to websites such as
'Avon.leadswork.co.uk'. The third parties from whom data was
purchased were said to be' , - -
- and _,_ Advertising was also operated extensively on
'-,--and--'·
19. In response to enquiries about contractual agreements, LWL stated that
before working with a partner they 'review their terms and conditions
and see the URL where the opt-in will occur', later adding that they also
go through the registration process on a test basis to ensure necessary
opt-ins were present. No contractual agreements were said to be in
place or provided. LWL said that they had generated leads for Avon
representatives for a 'very long time'.
20. A review by the Commissioner of the information provided by LWL
revealed that its dominant data supplier was - - whose data
capture website was' '. This website consists of a
landing page to opt-in, a privacy notice, and an option to unsubscribe.
The website states that it is 'part of the - • - _',
which is a company quite distinct from - -· LWL is named in
the consent statement; by clicking the 'partners' link in the consent
statement, individuals are directed to the privacy policy in which LWL
are named in the 'marketing service providers' section.A further link
to 'direct clients' presents individuals with a further list of 457 distinct
organisations from whom individuals may expect to receive marketing,
in which LWL is not included. The website does not allow individuals to
submit their details without checking 'at least one' marketing channel.
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Furthermore, the website is vague and confusing given the discursive
and lengthy nature of the consent statement and the extensive list of
sectors and companies contained within both it and the privacy policy.
For these reasons the Commissioner concluded that consent was not
freely given, specific and informed.
21. In response to a request by the Commissioner for evidence of consent,
LWL explained that a suppression list was in place should anyone reply
'Stop' to a message. In respect of the customer journey LWL explained
that should a customer consent to be contacted by LWL then they are
sent an initial message asking whether they want to be contacted by a
local Avon representativeIf they respond positively then their data is
shared with the local representative.
22. LWL provided the Commissioner with a 'GDPR pack' containing a Data
Protection Impact Assessment ("DPIA") and a 'company compliance
document'. The latter discusses LWL's data protection obligations as a
company, and whilst robust for the purpose it sets out to achieve, at no
point is PECRreferenced. The DPIA, dated 20 October 2019, explicitly
refersto PECRand consent, acknowledges that there is a 'degree of
public concern over personal data sales', and refers to regulatory action
by the ICO.
23. LWL proclaimed their membership of 'S.H.I.E.L.D.' as an indicator of
their compliance. This is a scheme operated by a law firm who appear
to audit companies' GDPR compliance, and if deemed compliant, they
are entered into the scheme. No evidence of due diligence conducted
by this law firm on behalf of the company has been provided by LWL.
24. Having reviewed LWL's response, the Commissioner sent a further set
of detailed enquiries to LWL on 9 June 2020, attaching evidence of an
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additional 8,089 complaints identified through the 7726 SPAM reporting
system since the initial enquiries were sent.
25. A substantive response was provided by LWL on 19 June 2020. This
included the body of 64 distinct texts sent during the investigation
period (over three times the amount identified in LWL's initial
response). As was seen from those messages, LWL did not identify
itself as the sender. LWL also provided volumes of data purchased since
1 May 2019. Further capture domains were identified. In particular,
was identified as also capturing the data that -
- supplied. LWL prefaced this by stating that they were previously
unaware of this website being a capture domain, and so had
immediately enquired as to the compliance and opt-in of this website.
It was explained that this website directs individuals to a registration
page where their details are inputted, and agreement to the privacy
policy obtained.LWL stated that lawyers had been involved in creation
of the website's legal framework on behalf of another client, and so
were confident it would be compliant.
26. The Commissioner reviewed the privacy policy on '
which has granular opt-ins for each channel and a third party opt-in.
The policy states that the website is owned and operated by a
differentlynamed company than - ., who sold the data to
LWL. The third party opt-in on the registratiopage contains a link to
'partners' where 16 companies are listed, in which LWL does not
appear. LWL does appear in the privacy policy, in a list of 7 'marketing
service providers'. A further 442 companies are then listed under 'direct
clients' followed by the following statement"at registration you have
the option to opt-in to sponsors of our website". The Commissioner
found the consent statements to be vague and confusing. Further, LWL
are not named at the point of consent and in view of the extensive list
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of companies in the privacy policy, the Commissioner considered that
consent was not specific or informed.
27. Data was also stated to be purchased by LWL from ,. ? -
_, ('-"), the second largest of LWL's data suppliers, through
websites' 'and' '. These sites
share the same vague consent statement, which contains a link to
identical privacy policies. The privacy policies contain no distinguishable
'third party policy' and lists approximat40 companies with whom
data may be shared. LWL are not listed in the privacy policy, instead
'UK - Avon' are listed; this listing is hyperlinked to LWL's privacy policy.
In representationsmade to the Commissioner in response to the Notice
of Intent, LWL provided a letter from - which stated that LWL
should be considered to fall within the category of 'health and beauty
tips'.Given that LWL are not directly named in any list, and the
policies are convoluted, individuals could not reasonably be expected to
know that LWL were linked to Avon. For the reasons above the
Commissioner found that the consent statements did not constitute
informed and specific consent.
28. In relation to the volume of texts sent to each data source, LWL stated
it was not possible to produce an entirely accurate figure, however
provided an approximation of volumes in a further email to the
Commissioner dated 24 June 2020. Between 1 May 2019 and 15 May
2020 LWL approximated that it sent in excess of 25 million texts to
data sourced from __ , --- and•••· The vast
majority of the texts, as well as the complaints evidenced in the
Commissioner's second investigation letter, were related to data
supplied by --·
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29. A further request for information was sent by the Commissioner to LWL
on 26 June 2020 seeking evidence of consent in relation to another
4,703 complaints received through the 7726 SPAM reporting service,
information regarding data supplier'••• ? ,and an accurate
number of texts sent though each source between 16 May 2020 and 26
June 2020.
30. LWL's director responded on 3 July 2020, providing further opt-ins. In
relation to he said the use of this data preceded his time as
director, and so would need to contact directly or his
predecessors for information.
31. LWL went onto verify that between 16 May 2020 and 26 June 2020, a
total of 3,486,716 messages were sent, of which 3,327,573 were
received. Of these,3,013,096 texts were sent, and 2,670,140
connected, to data sourced by -- and ---
(comprising 1,911,493 to -- data and 758,647 to'- ?
-'data).
32. On 10 July 2020 LWL supplied the Commissioner with information
regarding the ' ' data source. LWL identified the domains used
by '(also used by -- and
previously reviewed by the Commissioner - see para. 20 above) and
'. Thelatter is operated by - - and its
consent statement lists 240 companies who may contact individuals.
LWL are not included in the list. The privacy policy does name LWL, but
within a list of hundreds of other sponsors. The Commissioner found
that consent in those circumstances was not specific and informed.
33. In conclusion the Commissioner considers that LWL relied upon invalid
consents to send direct marketing texts to individuals whose data was
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sourced by __ , ___ , and
LWL's business
model is inextricably linked to direct marketing, and whilst it did make
some attempt to comply with data protection legislation, it had no
discernible policiesr procedures relevant to PECRcompliance, and any
due diligence was insufficient.
34. During the period 16 May 2020 to 26 June 2020, a total of 12,281
complaints from 11,733 individuals about unsolicited texts from LWL
were received via the 7726 reporting service. 4 complaints were
received though the Commissioner's online reporting tool. The vast
majority of complaints (10,570) relate to data sourced by - -·
It is also noteworthy that LWL began receiving a significant number of
complaints from May 2020 onwards, shortly after the UK entered
lockdown in response to the pandemic.
35. The Commissioner has made the above findings of fact on the balance
of probabilities.
36. The Commissioner has considered whether those facts constitute a
contravention of regulation 22 of PECRby LWL and, if so, whether the
conditions of section SSA DPA are satisfied.
The contravention
37. The Commissioner finds that LWL has contravened Regulation 22 of
PECR.The Commissioner finds that the contravention was as follows:
38. Between 16 May 2020 and 26 June 2020 LWL transmitted 2,670,140
texts over a public electronic communicationnetwork by means of
electronic mail to individual subscribers for the purposes of direct
marketing contrary to regulation 22 of PECR.
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39. Organisations cannot generally send marketing texts unless the
recipient has notified the sender that they consent to such texts being
sent by, or at the instigation of, that sender.
40. The Commissioner is satisfied that the consent relied on by
LWL did not amount to valid consent for the purposes of regulation 22
PECR.
41. The Commissioner is satisfied that LWL was responsible for this
contravention.
42. The Commissioner has gone on to consider whether the conditions
under section SSA DPA were met.
Seriousness of the contravention
43. The Commissioner is satisfied that the contraventioidentified above
was serious.
44. This is because LWL sent 2,670,140 marketing text messages to
individuals without their consent, resulting in excess of 10,000
complaints, over a period of 41 days. The volume of texts and
complaints over such a short period is substantial. Indeed, the
Commissioner would go so far as to say that the ratio of complaints to
the volume of data subjects in receipt of unlawful texts far exceeds any
contravention she has witnessed to date.
45. It is reasonable to suppose that the volume of contraventionis
actually significantly higher, and spanned a broader period of time. LWL
approximated that during the period 1 May 2019 and 15 May 2020, it
sent 17.23 million texts to--data, 6.43 million texts to.
-- data and 1.37 million texts to data. All these data
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sources have been deemed non-compliant, however as LWL's system
overwrites data after a period of time, LWL have been unable to verify
these figures.
46. The Commissioner's Direct Marketing Guidance available on the ICO's
website states that: "Organisations can generally only send marketing
texts or emails to individuals (including sole traders and some
partnerships) if that person has specifically consented to receiving
them". Point 60 of the Guidance refers to the fact that freely given
consent should be demonstrated where it is the "condition of
subscribing to a service", however it is apparent that consent is not
freely given in the case of data sourced by - - (LWL's largest
provider of data) through ' ', because individuals are
not able to register without subscribing to at least one marketing
channel.
47. Furthermore, the Commissioner's guidance in relation to PECRstates
that "making a large number of marketing calls based on recorded
messages or sending large numbers of marketing text messages to
individuals who have not consented to receive them [...] is likely to
constitute a serious contraventioof the Regulations".
48. The Commissioner is therefore satisfied that condition (a) from section
SSA (1) DPA is met.
Deliberate or foreseeable contravention
49. The Commissioner has considered whether the contravention identified
above was deliberate. In the Commissioner's view, this means that
LWL's actions which constituted that contraventionwere deliberate
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actions (even if LWL did not actually intethereby to contravene
PECR).
50. The Commissioner considers that in this case that LWL's actions were
deliberate, as despite having been notified that it was under
investigatioby the Commissioner, and given her concerns about
LWL's compliance with PECR, LWL has continued its marketing
campaign without making any adjustments to its business model. LWL
continues to send unlawful text messages even after the investigation
was completed, and a Notice of Intent served upon LWL in which it's
practices were deemed non-compliant.
51. Further, and in the alternatithe Commissioner has gone on to
consider whether the contraventionidentified above was negligent.
52. First, she has considered whether LWL knew or ought reasonably to
have known that there was a risk that this contraventiowould occur.
She is satisfiedhat this condition is met, given that LWL's business
model relied heavily on direct marketing.
53. LWL is registered with the ICO as a data controller and as such should
be aware of the Regulations.As the sender of the texts it was the
responsibility of LWL to ensure valid consent had been obtained prior to
their transmission.
54. The Commissioner has published detailed guidance for those carrying
out direct marketing explaining their legal obligations under PECR.This
guidance explains the circumstances under which organisations are
able to carry out marketing over the phone, by text, by email, by post,
or by fax.
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55. Furthermore, the issue of unsolicited marketing has been widely
publicised by the media as being a problem.
56. LWL had a DPIA in place dated 20 October 2019 which demonstrates
awareness on the part of LWL as to its statutory obligatioIt.contains
the following statement:
LW have considered the fact that there is a degree of public concern
over the sales of personal data. The legislation is clear on the point of
consent and the subsequent enforcement action brought by the
Regulator (ICO) has reinforced the legislation and demonstrated a clear
pathway to take for businesses engaged in the sale of personal data
This unambiguously references public concern regarding data sales,
and an awareness of enforcement action taken by the ICO.
57. It is therefore reasonable to suppose that LWL knew or ought
reasonably to have known that there was a risk that these
contraventions would occur.
58. The Commissioner has also considered whether LWL failed to take
reasonable steps to prevent the contraventions.
59. Reasonable steps could have included seeking appropriate guidance on
the rules in relation to electronic direct marketing and ensuring the
consent on which it sought to rely on was valid, putting in place
contractual arrangements to ensure the veracity of the data, and
conducting sufficient due diligence in relation to its data providers.
60. In this case, LWL failed to put in place contractual arrangements with
data suppliers despite sourcing significant volumes of data from these
suppliers. Any due diligence appears to be minimal and there is a lack
of evidence in relation to thisBy their own admission, LWL conducted
most of their due diligence checks on ' ', by looking
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at the website and testing the registration pages, however had these
checks been sufficient LWL should have known that the website was
non-compliant. In fact, LWL only became aware of a page that sourced
a significantmount of-- data when the ICO investigation
commenced. LWL purports to rely on their entry to the S.H.I.E.L.D.
scheme as reassurance of compliance, however no evidence in relation
to this has been provided.
61. LWL appear to have placed great reliance upon due diligence
conducted by third parties in relation to data capture websites, and the
fact that there had been legal input from lawyers engaged by other
organisations who also utilised those same websites. LWL have
provided minimal evidence in relation to any due diligence provided by
others and appear to have assumed that as others were reliant upon it,
then their own business model must also have been compliant. It would
have been reasonable for LWL to carry out its own checks as to
how consent was being obtained via the websites, notwithstandingany
assurances by its third-partdata providers - such checks would have
alerted LWL to the inadequacy of the consents being obtained via the
sites for the purposes of third-pardirect marketing. In short, simple
reliance on assurances of indirect consent alone without undertaking
proper due diligence is not acceptable.
62. Furthermore, LWL has continued to send significant numbers of
marketing texts to individuals throughoutand since, the course of the
Commissioner's investigation,incurring a substantial amount of
complaints. This would suggest that no remedial measures have been
taken to prevent further contraventionsand an apparent continuing
disregard for its obligations under PECR. Indeed, since August 2020 to
the date of this Notice, a further 28,350 complaints about marketing
texts from LWL have been received by the 7726 reporting service.
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63. In representations made to the Commissioner, LWL states that at no
time was it made aware that its practices were non-compliant.The
Commissioner views the fact that an organisation is under investigation
should be sufficient impetus for that organisation to review its own
practices in lineith the Regulations. Irrespective of the timing of any
awareness on LWL's part, it is apparent that LWL has not heeded the
Commissioner's concerns and has continued its campaign in blatant
disregard for the Regulations.
64. The Commissioner is therefore satisfied that condition (b) from section
SSA (1) DPA is met.
The Commissioner's decision to impose a monetary penalty
65. The Commissioner has taken into account the following aggravating
features of this case:
• The texts misleadingly appeared to be sent by Avon. LWL accepts that
it deliberately did not identify itself in the body of the texts as the
sender so as to not "confuse" recipients, and as such were in breach of
regulation 23 of PECR.
• LWL has continued to run the marketing campaign both during, and
since,the Commissioner's investigation and despite the ICO's
concerns,without attempting to amend or review its practices. Indeed,
all the contraventionwhich are the subject of this Notice occurred
after LWL were notified it was under investigatioFurthermore, LWL
has continued to send unlawful marketing texts after the Commissioner
completed her investigationon 26 June 2020, and issued a Notice of
Intent in which LWL's practices were deemed non-compliant.
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• Since August 2020 to the present time, an additional 28,350
complaints have been received by the 7726 SPAM reporting tool about
texts sent by LWL.
• LWL sought to capitalise on the pandemic by sending a significant
number of text messages relating to, and directly referencing, the
ensuant lockdown when the population was at its most vulnerable and
advertising the potential financial gains by becoming an Avon
representative.1,698 complaints were received regarding this
particular message.
• LWL repeatedly indicated long standing compliance with PECRin its
communications with the Commissioner which was blatantly untrue.
LWL also failed to be completely transparentduring the course of the
investigation.For example, when asked to provide details of the body
of texts sent by LWL, it initially provided only 19, when it later
transpired 65 separate texts were utilised. In representatioto the
Commissioner, LWL stated that those omitted were simply variants of
the original texts however the Commissioner's view remains that LWL
were not completely open and transparent in relation to her enquiry.
• Furthermore, LWL failed to inform the Commissioner in its response to
enquiries about marketing methods that it also conducted email
marketing. The Commissioner has since been made aware that·
- conducted hosted marketing for LWL, and that over a 12 month
period had sent 7.5 million emails on LWL's behalf, including activity
during the contravention period. Between the contravention period 16
May 2020 - 26 June 2020 the number of emails transmitted was
1,006,000.
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66. The Commissioner considers there are no mitigating factors to be
considered in this case.
67. For the reasons explained above, the Commissioner is satisfied that the
conditions from section SSA(l) DPA have been met in this case. She is
also satisfiedthat the procedural rights under section 55B have been
complied with.
68. This has included the issuing of a Notice of Intent, in which the
Commissioner set out her preliminary thinking, and invited LWL to make
representations in response.
69. The Commissioner has received and considered Representations in
response to the Notice of Intent dated 9th & 22nd December 2020, and
5th, 13th & 20th January 2021.
70. The Commissioner is accordingly entitled to issue a monetary penalty in
this case.
71. The Commissioner has considered whether, in the circumstances, she
should exercise her discretion so as to issue a monetary penalty. She
has decided that a monetary penalty is an appropriate and proportionate
response to the finding of a serious contraventionof regulation22 of
PECRby LWL.
72. The Commissioner's underlying objective in imposing a monetary
penalty notice is to promote compliance with PECR. The making of
unsolicited direct marketing calls is a matter of significant public concern.
A monetary penalty in this case should act as a general encouragement
towards compliance with the law, or at least as a deterrent against non
compliance, on the part of all persons running businesses currently
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engaging in these practices. This is an opportuto reinforce the need
for businesses to ensure that they are only telephoning consumers who
want to receive these calls.
73. The Commissioner has also considered the likely impact of a monetary
penalty on LWL and in doing so has reviewed financial evidence supplied
by LWL.
The amount of the penalty
74. Taking into account all of the above, the Commissioner has decided that
the amount of the penalty is £250,000 (Two hundred and fifty
thousand pounds).
Conclusion
75. The monetary penalty must be paid to the Commissioner's office by
BACS transfer or cheque by 1 April 2021 at the latest. The monetary
penalty is not kept by the Commissioner but will be paid into the
Consolidated Fund which is the Government'sgeneral bank account at
the Bank of England.
76. If the Commissioner receives full payment of the monetary penalty by
31 March 2021 the Commissioner will reduce the monetary penalty by
20% to £200,000 (Two hundred thousand pounds). However, you
should be aware that the early payment discount is not available if you
decide to exercise your right of appeal.
77. There is a right of appeal to the First-tier Tribunal (InfoRights)
against:
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a) the imposition of the monetary penalty
and/or;
b) the amount of the penalty specified in the monetary penalty
notice.
70. Any notice of appeal should be received by the Tribunal within 28 days
of the date of this monetary penalty notice.
71. Informationabout appeals is set out in Annex 1.
72. The Commissioner will not take action to enforce a monetary penalty
unless:
• the period specified within the notice within which a monetary penalty
must be paid has expired and all or any of the monetary penalty has
not been paid;
• all relevant appeals against the monetary penalty notice and any
variation of it have either been decided or withdraand
• period for appealing against the monetary penalty and any variation of
it has expired.
73. In England, Wales and Northern Ireland, the monetary penalty is
recoverable by Order of the County Court or the High Court. In
Scotland, the monetary penalty can be enforced in the same manner
as an extract registered decree arbitral bearing a warrant for execution
issued by the sheriff court of any sheriffdom in Scotland.
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Information Commissioner's Office
Dated the 1 day of March 2021
Andy Curry
Head of Investigations
InformatioCommissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 SAF
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ANNEX 1
SECTION 55 A-E OF THE DATA PROTECTION ACT 1998
RIGHTS OF APPEAL AGAINST DECISIONS OF THE COMMISSIONER
1. Section 48 of the Data Protection Act 1998 gives any person upon
whom a monetary penalty notice or variation notice has been served a right
of appeal to the First-tier Tribunal (InformRights) (the 'Tribunal')
against the notice.
2. If you decide to appeal and if the Tribunal considers:-
a) that the notice against which the appeal is brought is not in accordance
with the law; or
b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that she ought to have exercised her discretion differently,
the Tribunal will allow the appeal or substitute such other decision as could
have been made by the Commissioner. In any other case the Tribunal will
dismiss the appeal.
3. You may bring an appeal by serving a notice of appeal on the Tribunal
at the following address:
GRC & GRPTribunals
PO Box 9300
Arnhem House
31 Waterloo Way
Leicester
LEl 8DJ
a) The notice of appeal should be sent so it is received by the Tribunal
within 28 days of the date of the notice.
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b) If your notice of appeal is late the Tribunal will not admit it unless the
Tribunal has extended the time for complying with this rule.
4. The notice of appeal should state:-
a) your name and address/name and address of your representative
(if any);
b) an address where documents may be sent or delivered to you;
c) the name and address of the Information Commissioner;
d) detailsof the decision to which the proceedings relate;
e) the result that you are seeking;
f) the grounds on which you rely;
g) you must provide with the notice of appeal a copy of the
monetary penalty notice or variation notice;
h) if you have exceeded the time limit mentioned above the notice
of appeal must include a request for an extension of time and the
reason why the notice of appeal was not provided in time.
5. Before deciding whether or not to appeal you may wish to consult your
solicitor or another adviser. At the hearing of an appeal a party may conduct
his case himself or may be represented by any person whom he may
appoint for that purpose.
6. The statutory provisions concerning appeals to the First-tier Tribunal
(Information Rights) are contained in sections 48 and 49 of, and Schedule 6
to, the Data Protection Act 1998, and Tribunal Procedure (First-tier Tribunal)
(General Regulatory Chamber) Rules 2009 (Statutory Instrument 2009 No.
1976 (L.20)).
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