UKUT (AAC) - Leave.EU and Eldon v Information Commissioner

UKUT (AAC) - Leave.EU and Eldon v Information Commissioner

Court:	UKUT (AAC)
Jurisdiction:	United Kingdom
Relevant Law:	Regulation 22 PECR 2003
Decided:	08.02.2021
Published:
Parties:	Eldon Insurance Services Limited Leave.EU Group Limited The Information Commissioner
National Case Number/Name:	Leave.EU and Eldon v Information Commissioner
European Case Law Identifier:
Appeal from:	First-tier Tribunal (General Regulatory Chamber)
Appeal to:	Not appealed
Original Language(s):	English
Original Source:	British and Irish Legal Information Institute (BAILII) (in English)
Initial Contributor:	Frederick Antonovics

The Upper Tribunal dismissed an appeal against the FTT's decision to uphold three fines imposed on Leave.EU and Eldon Insurance Services by the UK DPA (ICO) in February 2019.

English Summary

Facts

This case is an appeal by Leave.EU and Eldon Insurance Services of 3 different fines imposed on them by the ICO in 2019. For detailed background information on the case see here.

Holding

The appellants' were given permission by the FTT to appeal to the Upper Tribunal (UKUT) on nine grounds, namely that the FTT erred in law by finding that:

the Commissioner’s failure to comply with her published Regulatory Action Policy ('RAP') was not a basis for overturning the notices
the relevant Leave.EU newsletters were an unsolicited communication for the purpose of direct marketing;
the consent given by Leave.EU subscribers did not comprise freely given, informed and specific consent to the inclusion of the GoSkippy promotion in the newsletters;
Eldon had instigated the transmission of the relevant newsletters;
Leave.EU and Eldon ought to have known that the inclusion of the GoSkippy promotion in the Leave.EU newsletters risked contravening PECR;
the relevant newsletters were a serious contravention of PECR;
the notices were proportionate and consistent with the ICO’s general approach;
the test for apparent bias was not satisfied;
the decision to issue the assessment notices was lawful.

These were grouped into four broad headings by the court, which in turn assessed each of the following matters.

whether sending the newsletters fell within the scope of regulation 22 of PECR (Grounds 2, 3 and 4);
whether the criteria for issuing a MPN were met (Grounds 5 and 6);
whether the various notices complied with the Commissioner’s RAP, the requirements of proportionality and the statutory basis for an assessment notice (Grounds 1, 7 and 9); and
whether the notices were vitiated by procedural unfairness (Ground 8).

Scope of regulation 22 PECR

The tribunal first considered ground 2. The appellants argued that "finding that the relevant Leave.EU newsletters were unsolicited communications for the purposes of direct marketing" would go against the purpose of the directive implemented by the PECR and that the newsletter could not be considered "unsolicited communications for the purposes of direct marketing."

The tribunal disagreed. It held that (i) the purpose of the directive was to protect privacy and that the reach if regulation 22 turns on ordinary principles of interpretation rather than being exclusively applicable to cases involving spam, and (ii) that whilst the newsletters themselves were not "unsolicited communications" but that the "GoSkippy banner or other kangaroo-related content" constituted the communication. Thus, ground 2 failed.

It then turned to ground 3. The appellants contended that the FTT had “held that Leave.EU subscribers had not consented to receive the newsletters which included the GoSkippy promotion.”

The tribunal disagreed. It reiterated that the FTT found that the consent given by subscribers to the Brexit newsletters was not sufficiently 'freely-given, specific and informed' to extend to receiving direct marketing from Eldon about its insurance products. It then analysed the scope of consent for the purpose of regulation 22 PECR, looking at Directive 95/46/EC and its interpretation in the CJEU. It came to the conclusion that because subscribers only agreed to a "very loosely drafted privacy policy", it could not be said that they consented to receive direct marketing around Eldon's insurance products. Thus, ground 3 also failed.

It then turned to ground 4. The appellants argued that the FTT "erred in law in finding that the insurance company had 'instigated' the transmission of the Leave.EU newsletters."

The tribunal disagreed. It considered the meaning of 'instigate' in light of the judgment in Microsoft Corporation v McDonald and held that the FTT was right to find that Eldon's involvement with the newsletter "amounted to more than mere facilitation and instead represented a form of positive encouragement to transmit the offending material”. Thus, ground 4 also failed.

Monetary penalty notices ('MPN')

The tribunal started its judgment under this heading by restating the legislative framework for MPNs.

It then assessed Ground 6, or the claim that the FTT erred in finding the relevant newsletters were a “serious contravention” of PECR. It stated that MPNs "do not require a serious intrusion of individuals’ privacy rights [but] a serious contravention of PECR." It held that because a total of over 1 million emails (or 21 emails to over 50,000 recipients) were sent out by the appellants the FTT was entitled to its finding of fact that the contravention was sufficiently serious for the ICO to issue an MPN.

The tribunal then considered Ground 5, or the appellants' claim that the FTT erred in law in finding that they "ought to have known that including the GoSkippy promotion in the Leave.EU newsletters risked contravening PECR." It first confirmed that the fact that the appellants had recent experience of being penalised for a breach of PECR was a relevant consideration in relation to constructive knowledge of risk, then that the they ought to have read the ICO's guidance on direct marketing. Thus, it dismissed ground 5 as well.

Assessment notices and enforcement notices

The tribunal started its judgment under this heading by restating the legislative framework in turn for enforcement and assessment notices. The general issue it assessed under this heading was "whether the FTT erred in law in finding that the Commissioner’s five notices under appeal complied with (i) her RAP, (ii) the requirements of proportionality and (iii) the statutory basis for an assessment notice."

First, it rejected Ground 1, or that the "FTT erred in law by concluding that the fact that the Commissioner had exercised her discretion to issue the notices in circumstances not envisaged in the RAP was not a basis to overturn those notices". It justified this by restating the applicable law, and in light of this analysis held that "any error of law on the part of the Commissioner could not be material and so Ground 1 cannot succeed in any event."

Second, it rejected Ground 7, or that "the FTT had erred in law by failing to apply to the notices under challenge the three-fold structured test required by the EU principle of proportionality, namely (i) suitability; (ii) necessity; and (iii) a fair balance of means and ends." It held this claim could not succeed as past case law never affirmed its validity and stated that "[t]he correct proportionality test in a full merits review appeal is simply whether a fair balance has been struck between means and ends."

Third, it rejected Ground 9, or that the FTT made three errors in its reasoning on the lawfulness of the assessment notices, on the basis that the FTT complied with the requirements of section 146 DPA 2018.

Procedural unfairness

Finally, the Upper Tribunal considered Ground 8, or "the question whether the FTT erred in law in concluding that none of the Commissioner’s regulatory notices were vitiated by procedural unfairness." It held that because the FTT accepted the investigation which led to the procedure in question commenced as a result of another investigation 'Operation Cederberg' (during which it became aware of possible breaches by the appellants) and rejected "the implication that the Commissioner should have ignored issues that had come to light because they did not directly relate to the concerns that had led to [that operation], the arguments about the scope and nature of that Operation and the way in which it was reported to Parliament fall away."

Comment

Both the ICO and First-Tier Tribunal decisions are not published, with the effect that this case contains the only available factual and legal analyses of the issues at hand.

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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.


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&#13;Leave.EU and Eldon v Information Commissioner   [2021] UKUT 26 (AAC) (8 February 2021) The Information Commissioner issued Leave.EU and Eldon with both monetary penalty notices and assessment notices (and an enforcement notice in the case of Eldon) under DPA 1998 and 2018 - the First-tier Tribunal dismissed all five appeals - Appellants' grounds of appeal to the Upper Tribunal concerned the scope of regulation 22 PECR, the meaning of `consent' and `instigates', the criteria for making a MPN (`serious contravention' and knowledge of risk of breach), the relevance of the Commissioner's regulatory action policy (RAP), proportionality and the criteria for an assessment notice, and unfair process - All five appeals dismissed by Upper Tribunal. A HTML version of this file is not available click here or view below the pdf version : [2021] UKUT 26 (AAC)&#13;&#13;
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