ICO (UK) - LTH Holdings Limited: Difference between revisions
From GDPRhub
No edit summary |
No edit summary |
||
| Line 54: | Line 54: | ||
}} | }} | ||
The UK DPA fined a funeral plan service approximately €168,000 (£145,000) for sending direct marketing | The UK DPA fined a funeral plan service approximately €168,000 (£145,000) for sending direct marketing calls to individuals registered with the Telephone Preference Service who had not given their prior consent to be called. The DPA clarified that consent for such calls should be 'freely given' (meaning that data subjects must have had the choice to agree to electronic marketing from third parties like the funeral home), 'specific' with regards to the source and kind of direct marketing received, and 'informed' by easy-to-understand information. | ||
The ICO considered these communications to be of particular concern as they were directed at vulnerable people. | |||
== English Summary == | == English Summary == | ||
Revision as of 11:30, 16 June 2021
| ICO (UK) - LTH Holdings Limited | |
|---|---|
 | |
| Authority: | ICO (UK) |
| Jurisdiction: | United Kingdom |
| Relevant Law: | Article 4(11) GDPR Regulation 2(1) of the Privacy and Electronic Communications (EC Directive) Regulations 2003 Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 03.06.2021 |
| Published: | 08.06.2021 |
| Fine: | 145000 GBP |
| Parties: | n/a |
| National Case Number/Name: | LTH Holdings Limited |
| European Case Law Identifier: | n/a |
| Appeal: | Not appealed |
| Original Language(s): | English |
| Original Source: | Information Commissioner's Office (in EN) |
| Initial Contributor: | n/a |
The UK DPA fined a funeral plan service approximately €168,000 (£145,000) for sending direct marketing calls to individuals registered with the Telephone Preference Service who had not given their prior consent to be called. The DPA clarified that consent for such calls should be 'freely given' (meaning that data subjects must have had the choice to agree to electronic marketing from third parties like the funeral home), 'specific' with regards to the source and kind of direct marketing received, and 'informed' by easy-to-understand information.
The ICO considered these communications to be of particular concern as they were directed at vulnerable people.
English Summary
Facts
LTH Holdings Limited is a telephone marketing company which sells a variety of products under various trading names.
Between May 2019 and May 2020 the ICO received a number of complaints from individuals about marketing calls from 'Serenity Funeral Plans,' (a trading name of LTH) which noted the rising cost of funeral plans. On 12 May 2020, the ICO sent an initial investigation letter to LTH setting out concerns and asking a number of questions regarding LTH's campaigns, with the complaints received to date attached.
LTHs response, as well as its further responses throughout the investigation, provided details of campaigns it had carried out, the source of data for those campaigns, the Calling Line Identifiers (CLIs) used for its calls, the scripts used by it as its various trading identities during the calls, and the connected call figures.
It transpired that the data that LTH used for its campaigns was provided by third-party data providers that compile data via multiple sources, i.e. online and paper catalogues, as well as 'internal sales/ internal data'. These third party data providers allegedly only provide data from sources whereby individuals have 'opted in' to be called. The ICO collected information on the 'opt in' mechanisms operated by each of the relevant third party data providers (which were unnamed).
Holding
The ICO found that LTH contravened Regulation 21 of PECR, which establishes that if a company wants to make calls to an individual who has a telephone number which is registered with the Telephone Preference Service Ltd ("TPS"), then that individual must have given their consent to that company to receive such calls. It stated that LTH used a public telecommunications service for the purposes of making 1,414,519 unsolicited direct marketing calls to subscribers who had registered with the TPS at least 28 days prior to receiving the calls, and had not given their prior consent to LTH to receive calls.
The ICO highlighted that consent, as defined by Article 4(11) GDPR, must be "freely given", meaning an organisation must be able to demonstrate how consent can be said to have been given freely. LTH were unable to do this; for all of LTH's third-party data providers, the data of individuals who purchased a product from one of their sites was passed to LTH for use in further direct marketing campaigns, without those individuals being given a genuine choice about whether to consent to such marketing from LTH. Generally, the applicable 'consent' mechanisms gave users no option but to agree to electronic marketing from third parties.
Consent was also not valid as it was not 'specific' since individuals were not able to select the method by which they might wish to receive direct marketing, nor from whom they may consent to receive it. It was also not 'informed'. The ICO emphasized that consent will not be informed if individuals are asked to agree to receive marketing from "similar organisations", "partners", "selected third parties" or other similar generic description. Rather, information should be clear and easy to understand.
The ICO concluded that a penalty in the sum of £145,000 was reasonable and proportionate. In particular, it considered the following aggravating features:
- LTH's primary audience appears to be older people;
- LTH adopted aggressive, coercive, and persuasive methods in its direct marketing;
- the current owner of the business is now disqualified from acting as a director;
- despite providing superficial responses to the ICO's various correspondence, LTH failed to co-operate with the ICO's investigation, because: it tended to refer the ICO to the third party data providers for information, rather than taking steps to obtain it itself (particularly notable given that it was information which a company would reasonably be expected to be in possession of when engaging in direct marketing campaigns); an LTH failed to provide accurate call figures when asked to do so.
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 PENAL TY NOTICE
To: LTH Holdings Ltd
Of: Unit G4 Capital Business Park, Parkway, Cardiff, United Kingdom
CF3 2PY
1. The InformationCommissioner ("Commissioner") has decided to issue
LTH Holdings Ltd ("LTH") with a monetary penalty under section SSA of
the Data Protection Act 1998 ("DPA"). The penalty is being issued
because of a serious contraventiof regulation 21 of the Privacy and
Electronic Communications(EC Directive) Regulations 2003 ("PECR").
2. This notice explainse Commissioner's decision.
Legal framework
3. LTH, whose registered office is given above (Companies House
Registration Number: 09571314) is the organisation stated in this
notice to have used a public electronic communicatservice for the
purpose of making unsolicited calls for the purposes of direct marketing
contrary to regulation 21 of PECR.
4. Regulation 21 applies to the making of unsolicited calls for direct
marketing purposes. It means that if a company wants to make calls
1 •
ICO.
Information Commissioner's Office
promoting a product or service to an individual who has a telephone
number which is registered with the Telephone Preference Service Ltd
("TPS"), then that individual must have given their consent to that
company to receive such calls.
5. Regulation 21 paragraph (1) of PECRprovides that:
"(1)A person shall neither use, nor instigate the use of, a public
electronic communications service for the purposes of making
unsolicited calls for direct marketing purposes where-
(a) the called line is that of a subscriber who has previously
notified the caller that such calls should not for the time being
be made on that line; or
(b) the number allocated to a subscriber in respect of the called
line is one listed in the register kept under regulation 26."
6. Regulation 21 paragraphs (2), (3)(4) and (5) provide that:
"(2) A subscriber shall not permit his line to be used in contravention
of paragraph (1).
(3) A person shall not be held to have contravened paragraph (1)(b)
where the number allocated to the called line has been listed on the
register for less than 28 days preceding that on which the call is
made.
(4) Where a subscriber who has caused a number allocated to a line of
his to be listed in the register kept under regulation 26 has notified
a caller that he does not, for the time being, object to such calls
2 •
ICO.
Information Commissioner's Office
being made on that line by that caller, such calls may be made by
that caller on that line, notwithstanthat the number allocated
tothat line is listed in the said register.
(5) Where a subscriber has given a caller notification pursuant to
paragraph (4) in relation to a line of his-
(a) the subscriber shall be free to withdraw that notification at
any time, and
(b) where such notification is withdrawn, the caller shall not
make such calls on that line."
7. Under regulation 26 of PECR,the Commissioner is required to maintain
a register of numbers allocated to subscribers who have notified them
that they do not wish, for the time being, to receive unsolicited calls for
direct marketing purposes on those lines. The TPS is a limited company
which operates the register on the Commissioner's behalf. Businesses
who wish to carry out direct marketing by telephone can subscribe to
the TPS for a fee and receive from them monthly a list of numbers on
that register.
8. Section 122(5) of the Data Protection Act 2018 ("DPA18") defines
direct marketing as "the communication (by whatever means) of any
advertising material which is directed to particular individuals". This
definition also applies for the purposes of PECR(see regulation 2(2)
PECRand paragraphs 430 & 432(6) to Schedule 19 of the DPA18).
9. Consent in PECRis defined, from 29 March 2019, by reference to the
concept of consent in Regulation 2016/679 ("the GDPR"): regulation
8(2) of the Data Protection, Privacy and Electronic Communications
(Amendments etc) (EU Exit) Regulations 2019. Article 4(11) of the
3 •
ICO.
Information Commissioner's Office
GDPR sets out the following definition: "'consent' of the data subject
means 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 affirmative action, signifies agreement to the processing of
personal data relating to him or her".
10. Recital 32 of the GDPR materially states that "When the processing has
multiple purposes, consent should be given for all of them". Recital 42
materially provides that "For consent to be informed, the data subject
should be aware at least of the identity of the controllRecital 43
materially states that "Consent is presumed not to be freely given if it
does not allow separate consent to be given to different personal data
processing operations despite it being appropriate in the individual
case".
11. "Individual"is defined in regulation 2(1) of PECRas "a living individual
and includes an unincorporated body of such individuals".
12. A "subscriber" is defined in regulation 2(1) of PECRas "a person who is
a party to a contract with a provider of public electronic
communications services for the supply of such services".
13. Section SSA of the DPA (as applied to PECRcases by Schedule 1 to
PECR, as variously amended) states:
"(1) 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) Regulations003 by the person,
(b) subsection (2) or (3) applies.
(2) This subsection applies if the contraventiwas deliberate.
4 •
ICO.
Information Commissioner's Office
(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
(b) failed to take reasonable steps to prevent the
contravention."
14. 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.
15. PECRwere enacted to protect the individual's fundamentalright to
privacy in the electronic communicationsector. PECRwere
subsequently amended and strengthened. The Commissioner will
interpret PECRin a way which is consistent with the Regulations'
overall aimof ensuring high levels of protection for individuals' privacy
rights.
16. The provisions of the DPA remain in force for the purposes of PECR
notwithstanding the introductioof the DPA18: see paragraph 58(1) of
Schedule 20 to the DPA18.
Background to the case
17. LTH are a telephone marketing company. They operate a multitude of
calling campaigns, selling a variety of products under different trading
names.
5 •
ICO.
InformationCommissioner's ffice
18. LTH came to the attention of the Commissioner due to a complaint
received relating to funeral plans. A TPS-registered individual had
received a call from 'Serenity Funeral Plans' which noted the rising cost
of funeral plans.
19. The 'Serenity Funeral Plans' website is accompanied by a paragraph
which explains that it is a trading name of LTH.
20. The Commissioner noted that a number of complaints had been
received between 1 May 2019 and 11 May 2020 about calls relating to
these funeral plans, and on 12 May 2020 she sent an initial
investigation letter to LTH setting out her concerns and asking a
number of questions regarding LTH's campaigns. Attached to this
initial investigation letter was an appendix of the TPS/ICO complaints
that had been received to date.
21. LTH's response provided, inter alia, details of the campaigns it had
carried out, the source of data for those campaigns, the Calling Line
Identifier("CLI"s) used for its calls, the scripts used by it as its
various trading identities during the calls, and the connected call
figures.
22. Itrecorded that 29 campaigns had been carried out using 19 Clls
during the periods in question. The data used had been provided from
various sources, chiefly (''-"), and -
("1111") (referred to hereafter
collectively as the "third-padata providers"), which obtain data via
multiple sources, i.e. online and paper catalogues, as well as 'internal
sales/ internal data'.
23. In response to the Commissioner's request for evidence of consent for
the complaints, LTH provided a spreadsheet which provided the name
of the third-partdata provider from which the data had been
6 •
ICO.
Information Commissioner's Office
obtained, and details of the individual's orders with those third-party
data providers. LTH also provided an extract from the 'privacy
statement' used by one of its third-partdata providers (specifically
-) which advised individuals that their personal informatiowould
be processed/retained for "certain legitimate Interest[sic].
24. LTH confirmed that it does not screen the data that it relied upon for its
direct marketing calls against the TPS register, with an explanation that
"the clients provide the instructions on TPS records".
25. Further,in terms of the data that it purchased from third-partdata
providers, in responseto the Commissioner's request for details of any
contractual obligations and due diligence on the data, LTH responded
simply saying: "Any purchased third party data provided by data
suppliers is checked", however no additional information was given
save for a later reference to an internal suppression list.
26. LTH provided some internal training documents, however there was
nothing provided which specifically related to PECRtraining or
guidance.
27. The Commissioner sent further enquiries to LTH on 15 June 2020,
particularlrequesting copies of any existing contracts with third-party
data suppliers, and further details about the consent that LTH relied on
to make its direct marketing calls, together with any details of its due
diligence.
28. On 26 June 2020 a response was provided however it notably failed to
address the Commissioner's request for contracts. LTH did provide
extracts from the Privacy Policies of the third-padata providers and
sought to provide an explanation of its relationship with _,
7 •
ICO.
InformationCommissioner'sfice
stating that it "conduct[scalling on behalf of - and sell[s] [its]
own products that have been produced with_,.
29. LTH also provided an explanation for those calls made using 'internal
data', describing this as "[c]ustomerwho have purchased one of the
products sold with- or other partners and then opted in for
other products that are available with other partners[ ...]".
30. In terms of its due diligenceLTH explained that the third-partydata
provider will "only provide data from sources that have been contracted
to be called".LTH explained that as a second check it would then
check the data against a suppression list.
31. The Commissioner sent further queries to LTH on 30 June 2020 asking
for,amongst other things, information about- and details about
the sources from which - obtains the data which it subsequently
provides to LTH. The Commissioner again asked for copies of
applicable contracts with the third-pardata providers, and also
requested further details about LTH's data purchasing and evidence for
the further complaints which the Commissioner had since discovered
from the Clls identified by LTH.
32. LTH responded on 7 July 2020 providing responses to the
Commissioner's queries. Itidentified eleven catalogues which -
would obtain data from which it would subsequently relay to LTH for its
direct marketing campaigns.
33. In addition, a contract was provided between -and LTH dated 1
October 2019, explaining that LTH would provide telemarketing
services for - and detailing the various campaigns to be
undertaken by LTH using data provided by- The contract did
not make any reference to PECR,or to data protection legislation at all.
With regards to the request for evidence of consent for the additional
8 •
ICO.
Information Commissioner's Office
complaints, LTH provided a spreadsheet listing the data source
(_), with 'Product Purchase' in the 'Consent Type' column.LTH
also provided details of how much data it had purchased from its third
party data providers in 2020, and details of its Communications Service
Provider ("CSP").
34. The Commissioner went on to consider the opt-ins for each of the
various sources used by LTH's third-partydata providers to obtain
data.
35. LTH's first third-pardata provider,_, collects consent online at
one of its two checkout pages. Its checkout page for individuals who
wish to create an account gives individuals the option to opt-in to email
marketing from _, and to opt-in to products/offerby post from
third partiesIndividuals wishing to checkout as guests are given no
options to opt-in to, or opt-out of, marketinRegardless of whether
the individual checks out as a guest, or has an account, both checkout
pages contain embedded text which advises individuals that: "We may
also telephone you offering services like our Motor Club, Lotto,
Gardening Club, Book Club, Supercard, Health Club and other leisure
services that we very carefully select. We may also email you special
offers and promotions.We work with other companies to understand
what sort of products and services you might like so we can aim to
contact you only about things you will be interested in.Individuals
are not given the ability to agree to, or decline, this further advertising
material at the point when they place an order with - and are
required to log into an account to amend their details, which would not
appear possible for individuals checking out as a 'guest'.
36. LTH's second third-partydata provider,_, collects consent through
its eleven catalogues, which each have very similar consent
statements:
9 •
ICO.
Information Commissioner's Office
37. 'offers just one pre-ticked box stating: "keep me up to
date on news and exclusive offers", directly beneath a box where an
individual would input their email contact informatiowhich states
"For order confirmation"in brackets. The individual's telephone
number is taken further down the form, but again this states: "For
shipping updates" in brackets. There is no option for individuals to
agree to direct marketing from third parties, to select which third
parties, if any, they might wish to be contacted by, or to select the
method by which they might consent to being contacted.
38. ,_, offers a series of opt-out boxes for contact methods for direct
marketing from_, however under where it says: "Pass your
contact data to other companies", there is only one box for "post".
There is no option for individuals to agree to electronic direct marketing
from third parties, to select which third parties, if any, they might wish
to be contacted by, or to select the method by which they might
consent to being contacted.
39. ' offers a series of opt-out boxes for contact methods
for contact from , however its checkout later states that
it would like to pass individuals' contact data to "other companies in
the Charity, Financial, Travel and Mail Order sectors" for "details of
their products, services, offers and competitionand there is only one
box for "post".There is no option for individuals to agree to electronic
direct marketing from third parties, to select which third parties, if any,
they might wish to be contacted by, or to select the method by which
they might consent to being contacted.
40. ' offers a seriesf opt-out boxes for contact
methods for direct marketing from , however
its checkout then states that
10 •
ICO.
Information Commissioner's Office
pass individuals' contact data to "other companies in the Charity,
Financial, Travel and Mail Order sectors" for "details of their products,
services, offers and competitionsand there is only one opt-out box for
"post". There is no option for individuals to agree to electronic direct
marketing from third parties, to select which third parties, if any, they
might wish to be contacted by, or to select the method by which they
might consent to being contacted.
41. ' offers a seriof opt-out boxes for contact methods
for direct marketing from , however its checkout then
states that Personal Choice would like to pass individuals' contact data
to "other companies in the Charity, Financial, Travel and Mail Order
sectors" for "details of their products, services, offers and
competitions" and there is only one opt-out box for "post"There is no
option for individuals to agree to electronic direct marketing from third
parties, to select which third parties, if any, they might wish to be
contacted by, or to select the method by which they might consent to
being contacted.
42. ,_, offers a series of opt-out boxes for contact methods for direct
marketing from _, however its checkout then states that -
would like to pass individuals' contact data to "other companies in the
Charity, Financial, Travel and Mail Order sectors" for "details of their
products, services, offers and competitionsand there is only one opt
out box for "post".There is no option for individuals to agree to
electronic direct marketing from third parties, to select which third
parties, if any, they might wish to be contacted by, or to select the
method by which they might consent to being contacted.
43. 'offers a series of opt-out boxes for contact
methods for contact from , however its checkout
then states that would like to pass individuals'
11 •
ICO.
Information Commissioner's Office
contact data to "other companies in the Charity, Financial, Travel and
Mail Order sectors" for "details of their products, services, offers and
competitions"and there is only one opt-out box for "post"There is no
option for individuals to agree to electronic direct marketing from third
parties, to select which third parties, if any, they might wish to be
contacted by, or to select the method by which they might consent to
being contacted.
44. ,_, offers a series of opt-out boxes for contact methods for
contact from _, however its checkout then states that -
would like to pass individuals' contact data to "other companies in the
Charity, Financial, Travel and Mail Order sectors" for "details of their
products, services, offers and competitionand there is only one opt
out box for "post".There is no option for individuals to agree to
electronic direct marketing from third parties, to select which third
parties, if any, they might wish to be contacted by, or to select the
method by which they might consent to being contacted.
45. The Commissioner was unable to identify the three remaining
catalogues from the information provided by LTH and so on 9 July 2020
sought further details from LTH regarding these, and regarding how
many campaigns an individual whose data was obtained via -
might expect to be called about. The Commissioner also asked LTH to
provide evidence that the individuals who provide 'consent' to its third
party data provider catalogues are indeed consenting to receive
unsolicited direct marketing calls from LTH.
46. LTH responded on 17 July 2020 advising that in respect of the three
remaining catalogues, the Commissioner "would need to get in contact
with - to request the domain names". LTH confirmed that,
regarding the data from_, it would call the individuals "on
multiple campaigns as agreed with _,_ LTH also stated,
12 •
ICO.
Information Commissioner's Office
regarding consent,that it "acts as a third party contractor for -
and [calls]to sell clubs on their behalf."
47. LTH identified that data was also collected from the paper catalogue of
_, and a copy of the whole catalogue page / privacy policy was
requested by the Commissioner.
48. A screenshot was subsequently provided with the following 'privacy
promise':
"As customers or subscribers, we will send you our catalogues and
information by post or email and may telephone offering services or
products such as our Health Motor, Supercard or Gardening clubs. If
you would prefer not to receive these communications let us know (see
below) or simply unsubscribe from any of the communications you
receive at the time.
We would also like to pass your name and address to other companies
in the Charity, Financial, Leisure, Travel and Mail Order Sector so they
can contact you with details of their products, services, offers and
competitions.You can opt-out at anytime by either calling our
customer service line or by contacting us at ,,
49. On 7 August 2020 the Commissioner sought details of the call volumes
for calls made by LTH from 1 May 2019 to 12 May 2020, together with
details of any 'opt-ouscript read to individuals when ordering
products from - via telephone.
50. LTH responded on 17 August 2020 explaining that it did not hold
-telephone order script and that the Commissioner would need
to contact - directly for thisLTH confirmed that between 1 May
2019 and 12 May 2020 it had made 1,542,069 direct marketing calls,
of which 1,197,717 connected to an individual subscriber.
13 •
ICO.
Information Commissioner's Office
51. In order to establish the Call Dialler Records ("CDR"s) for the
connected calls, and to establish the number of those calls which had
been made to individuals who had been listed on the TPS register for
not less than 28 days prior to receiving a call, the Commissioner sent a
third-partyinformation notice to LTH's CSP.
52. From the response provided, it was established that there had in fact
been 2,614,015 connected calls made from Clls attributed to LTH
between 1 May 2019 and 12 May 2020. Of these connected calls, the
Commissioner was able to identify that 1,414,519 were to individuals
who had been registered with the TPS for not less than 28 days at the
time they received the call. In reaching this figure the Commissioner
has removed those calls for which there is evidence that they were not
unsolicited.
53. The Commissioner understands that LTH would contact individuals
whose data had been obtained by its third-partdata providers with a
view to communicating further advertising material to them, and is
therefore satisfied that all 1,414,519 unsolicited calls were made for
the purposes of direct marketing as defined by section 122(5) of the
Data Protection Act 2018.
54. The Commissioner has made the above findings of fact on the
balance of probabilities.
55. The Commissioner has considered whether those facts constitute a
contravention of regulation 21 of PECRby LTH and, if so, whether the
conditions of section SSA DPA are satisfied.
The contravention
14 •
ICO.
Information Commissioner's Office
56. The Commissioner finds that LTH contravened regulation 21 of PECR.
57. The Commissioner finds that the contravention was as follows:
58. Between 1 May 2019 and 12 May 2020, LTH used a public
telecommunications service for the purposes of making 1,414,519
unsolicited calls for direct marketing purposes to subscribers where the
number allocated to the subscriber in respect of the called line was a
number listed on the register of numbers kept by the Commissioner in
accordance with regulation 26, contrary to regulation 2l(l)(of PECR.
59. The Commissioner is also satisfied for the purposes of regulation 21
that these 1,414,519 unsolicited direct marketing calls were made to
subscribers who had registered with the TPS at least 28 days prior to
receiving the calls, and they had not given their prior consent to LTH to
receive calls. These calls resulted in a total of 41 complaints over the
period of contravention.
60. For consent to be valid it is required to be "freely given", by which it
follows that if consent to marketing is a condition of subscribing to a
service, the organisation will have to demonstrate how the consent can
be saidto have been given freely. LTH have been unable to do this.
For bothof LTH's third-partydata providers, the data of individuals
who purchased a product from one of their sites was passed to LTH for
use in further direct marketing campaigns, without those individuals
being given a genuine choiceabout whether to consent to such
marketing from LTH.
61. Consent is also requiredo be "specific" as to the type of marketing
communication to be received, and the organisationor specific type of
organisation, that will be sending it. The Commissioner is concerned,
15 •
ICO.
Information Commissioner's Office
particularly in respect of the consents obtaine1111 that individuals
were not able to select the method by which they might wish to receive
direct marketing, or even from whom they may consent to receive it.
62. Consent will not be "informed"if individuals do not understand what
they are consenting to. Organisations should therefore always ensure
that the language used is clear, easy to understand, and not hidden
away in a privacy policy or small prinConsent will not be valid if
individuals are asked to agree to receive marketing from "similar
organisations","partners","selected third parties" or other similar
generic description.
63. LTH did not have valid consent, and nevertheless engaged in direct
marketing to individuals who had been registered with the TPS for not
less than 28 days.
64. The Commissioner has gone on to consider whether the conditions
under section SSA DPA are met.
Seriousness of the contravention
65. The Commissioner is satisfied that the contraventiidentified
above was serious. This is because there have been multiple breaches
of regulation 21 by LTH arising from the organisation's activities over a
twelve-month period, and this led to 1,414,519 unsolicited direct
marketing calls being made to subscribers who were registered with
the TPS. These 1,414,519 unsolicited calls led to a total of 41
complaints being made over the period of contraventionwith 19 being
made to the Commissioner, and 22 being made directly to TPS.
16 •
ICO.
Information Commissioner's Office
66. The Commissioner is therefore satisfied that condition (a) from
section SSA (1) DPA is met.
Deliberate or negligent contraventions
67. The Commissioner has considered whether the contravention identified
above was deliberate.
68. The Commissioner does not consider that there is sufficient evidence to
find that LTH deliberately set out to contravene PECRin this instance.
69. The Commissioner has gone on to consider whether the contravention
identified above was negligent. This consideration compritwo
elements:
70. Firstly, she has consideredether LTH knew or ought reasonably to
have known that there was a risk that this contraventwould occur.
This is not a high threshold, and she is satisfied that this condition is
met.
71. The Commissioner has published detailed guidance for companies
carrying out marketing explaining their legal requirements 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. It states that live calls must not be made to subscribers
who have told an organisation that they do not want to receive calls; or
to any number registered with the TPS, unless the subscriber has
specifically consented to receive calls. The Commissioner has also
published detailed guidance on consentnder the GDPR. In case
organisations remain unclear on their obligations, the ICO operates a
telephone helpline. ICO communications about previous enforcement
17 •
ICO.
Information Commissioner's Office
action where businesses have not complied with PECRare also readily
available
72. Standard practiceof the TPS is to contact the organisation making the
calls on each occasion a complaint is madeIt is therefore reasonable
to believe that LTH would have received a notification from the TPS for
each of the complaints being made in this case. That there were 22
complaints made to the TPS alone over the period of the contravention
should have made LTH aware of the risk that such contraventions may
occur and were indeed occurring.
73. Itis therefore reasonable to suppose that LTH should have been aware
of its responsibilities in this area.
74. Secondly, the Commissioner has gone on to consider whether LTH
failed to take reasonable steps to prevent the contraventioAgain, she
is satisfied that this condition is met.
75. The Commissioner's direct marketing guidance makes clear that
organisations utilising marketing lists from a third party must
undertake rigorous checks to satisfy themselves that the personal data
was obtained fairly and lawfully, that their details would be passed
along for direct marketing to the specifically named organisation in the
case of live calls, and that they have the necessary consenItis not
acceptable to rely on assurances given by third party suppliers without
undertaking proper due diligence.
76. LTH did not check any data against the TPS register, despite the
Commissioner's clear direct marketing guidance [at paragraph 108]
that: "[t]o comply with PECRorganisations should screen the list of
numbers they intend to call against the TPS register".
18 •
ICO.
Information Commissioner's Office
77. LTH have been unable to produce any internal training documents to
demonstrate any regard for lawful direct marketing practices, or indeed
for compliance with PECR.
78. Furthermore, LTH have been unable to evidence the existence of any
contractual terms between itself and_, and the Commissioner is not
persuaded that the contract in place between LTH and_, which
itself is dated 1 October 2019 (i.e. after the direct marketing
campaigns had commenced), contained any provision for consideration
of data protection legislation, or for the protection of individuals rights.
79. Indeed, it appears to the Commissioner that beyond checking data
against its own suppression list, LTH failed to carry out any due
diligence onthe data whatsoever prior to initiating its various
campaigns.
80. Given the volume of calls and complaints, it is clear that LTH failed to
take sufficient reasonable steps to prevent the contravention.
81. The Commissioner is therefore satisfied that condition (b) from section
SSA (1) DPA is met.
The Commissioner's decision to issue a monetary penalty
82. The Commissioner has taken into account the following aggravating
features of this case:
• The Commissioner is concerned that LTH's primary audience for its direct
marketing appears to be older people, given the references to funeral
plans within a number of the complaints, and the Commissioner's
19 •
ICO.
Information Commissioner's Office
general understanding about the third-partydata providers' traditional
customer bases;
• The Commissioner also has consideration of online reports that LTH
adopted aggressive, coercive, and persuasive methods in its direct
marketing;
• The Commissioner notes that the current owner of the business is now
disqualified from acting as a director;
• Despite providing superficial responses to the Commissioner's various
correspondence, the Commissioner is satisfied that LTH failed to co
operate with her investigation.This finding is based on LTH's tendency
to refer the Commissioner to the third-party data providers for some
information, rather than taking steps to obtain it itselfwhich is
particularly notable given that it was information which a company would
reasonably be expected to be in possession of when engaging in such
direct marketing campaigns. Furthermore, LTH failed to provide
accurate call figures when asked to do so.
83. For the reasons explained above, the Commissioner is satisfied that the
conditions from section SSA (1) DPA have been met in this case. She is
also satisfied that the procedural rights under section SSB have been
complied with.
84. The latter has included the issuing of a Notice of Intent, in which the
Commissioner set out her preliminary thinking. In reaching her final
view, the Commissioner has taken into account the representations
made by LTH on this matter.
20 •
ICO.
Information Commissioner's Office
85. The Commissioner is accordingly entitled to issue a monetary penalty
in this case.
86. The Commissioner has considered whether, in the circumstances, she
should exercise her discretion so as to issue a monetary penalty.
87. The Commissioner has attempted to consider the likely impact of a
monetary penalty on LTH but has been unable to do so given the lack
of recent publicly available informatioLTH was invited to provide
financial representationin response to the Notice of Intent but failed
to do so. The Commissioner considers in the circumstances that a
penalty remains the appropriate course of action.
88. The Commissioner's underlying objective in imposing amonetary
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 engaging in these practices. This is an opportunity
to reinforce the need for businesses to ensure that they are only
telephoning consumers who are not registered with the TPS and/or
specifically consent to receive these calls.
The amount of the penalty
89. Taking into account all of the above, the Commissioner has decided
that a penalty in the sum of £145,000 (one hundred and forty-five
thousand pounds) is reasonable and proportionategiven the
particular facts of the case and the underlying objective in imposing the
penalty.
21 •
ICO.
Information Commissioner's Office
Conclusion
90. The monetary penalty must be paid to the Commissioner's office by
BACS transfer or cheque by 6 July 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's general bank account at
the Bank of England.
91. If the Commissioner receives full payment of the monetary penalty by
5 July 2021 the Commissioner will reduce the monetary penalty by
20% to £116,000 (one hundred and sixteen thousand pounds).
However, you should be aware that the early payment discount is not
available if you decide to exercise your right of appeal.
92. There is a right of appeal to the First-tier Tribunal (InfoRights)
against:
(a) the imposition of the monetary penalty
and/or;
(b) the amount of the penalty specified in the monetary penalty
notice.
93. Any notice of appeal should be received by the Tribunal within 28 days
of the date of this monetary penalty notice.
94. Information about appeals is set out in Annex 1.
95. The Commissioner will not take action to enforce a monetary penalty
unless:
22 •
ICO.
Information Commissioner's Office
• 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 withdandn;
• the period for appealing against the monetary penalty and any
variation of it has expired.
96. In England, Wales and Northern Ireland, the monetary penalty is
recoverable byOrder 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.
Dated the 3rdday of June 2021.
Andy Curry
Head of Investigations
InformationCommissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 SAF
23 •
ICO.
Information Commissioner's Office
ANNEX 1
SECTION 55 A-E OF THE DATA PROTECTION ACT 1998
RIGHTS OF APPEAL AGAINST DECISIONS OF THE COMMISSIONER
1. Section 55B(S) of the Data Protection Act 1998 gives any person
upon whom a monetary penalty 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:
General Regulatory Chamber
HM Courts &Tribunals Service
PO Box 9300
Leicester
LEl 8DJ
24 •
ICO.
Information Commissioner's Office
Telephone: 0300 123 4504
Email: grc@justice.gov.uk
a) The notice of appeal should be sent so it is received by the
Tribunal within 28 days of the date of the notice.
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 noticeof 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) details of 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
25 •
ICO.
Information Commissioner's Office
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 (InformatiRights) are contained in section 55B(S) of, and
Schedule 6 to, the Data Protection Act 1998, and Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009
(StatutorInstrument 2009 No. 1976 (L.20)).
26
