Amber UPVC Fabrications v IC (EA/2014/0112) concerns a window company which received that used cold-calling and was frequently and persistently in breach of the the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), reg 21. The ICO issued a monetary penalty of £50,000 against the company and the company appealed.
The judgment in the case includes a careful consideration of the relevant law and, perhaps most interestingly, the contrast that can be seen between the PECR and the Directive.
The contentions on appeal were that the contravention was not serious, that the contravention was not of a kind likely to cause substantial distress, that the company’s engagement with the ICO and the improvements it made to its system as a result made the penalty inappropriate or disproportionate.
The tribunal appeared to have no difficulty in finding that the contravention was serious. It had been obvious to the company for some time that it was the subject of frequent complaint to the Telephone Preference Service and/or the Commissioner from TPS registered consumers. But it ‘did not treat the issue of its compliance with the law with appropriate seriousness. Its responses, such as they were, were always too little, too late …. The breaches were on a large scale and over a substantial period. … all or nearly all of the 524 calls identified by the Commissioner were contravening calls. Even if we are wrong about some of them, the broad picture does not alter.’
The chief point of interest on the appeal relates to the question of whether the calls were likely to cause substantial distress. It was accepted that aggregated instances of mere irritation or annoyance were not ‘substantial distress’. The issue was dealt with very fully (at [31]-[35]):
It seems to us that, when hundreds of people who are registered with TPS receive unsolicited marketing calls, there is a very significant and weighty chance of substantial distress being caused, ie, the degree of risk is such that there may very well be substantial distress, in two ways:
a. First, among the hundreds of people there may very well be one or more who are more sensitive than the average person, and accordingly suffer substantial distress as a result of such a call. This might be (for example) because they are suffering from physical or mental ill-health, or because they have recently been bereaved, or because they work from home and are close to a deadline for sending out a piece of work, or because of a recent bad experience with the same or another telesales company, or because the call comes at a time when they are awaiting a telephone call on a matter of great importance, or because they are elderly and vulnerable. There are many other possible reasons. The significant and weighty chance of causing substantial distress to one person is sufficient for the threshold test to be satisfied.
b. Secondly, among the hundreds of people affected there will be some whose sensitivity is significantly greater than average, so that they will suffer not merely irritation but some distress from the call, albeit falling short of a substantial kind. Given the numbers involved, the aggregation of the distress suffered by these people will easily pass the threshold of substantiality.
We have considered the details provided by complainants to the TPS and to the Commissioner. We are conscious that we are required to decide not whether substantial distress was actually caused but whether the contravention was of a kind likely to cause substantial distress. Most of the details relate to calls during the complaint period. Where they relate to calls outside the complaint period, they seem to us to be no less and no more pertinent for the purpose of testing our view of what was likely, since there is nothing to suggest that the nature of the calls altered.
While it is true that the details provided by TPS are fairly rudimentary, they do not in our view undermine the assessment which we have given above, of how substantial distress is likely to be caused.
In so far as those who complained to the Commissioner were a self-selecting sample whose reaction was stronger than that of the generality of recipients, this does not seem to us to be a feature that materially helps the appellant’s case. A person who suffered substantial distress might or might not complain to the Commissioner. Someone who was unwell or under severe pressure of work might be very unlikely to expend the time and effort to complain. If one person among that sample complained of substantial distress, that would constitute a potential illustration of the likelihood which we have mentioned above.
The details of the complaints made to the Commissioner seem to us to confirm our views of inherent likelihood which we have expressed above. The option “The call caused me substantial damage or distress” was repeatedly selected by complainants, and this is not something that we should simply ignore. Two more detailed examples will suffice to illustrate:
a. From within the complaint period one complainant, who selected the ‘substantial damage or distress’ option, wrote: “This call made me very angry. I have asked on many occasions that they should not call me again, but still they call. Asking me if I remember the previous call is adding insult to injury! I have called Amber Windows head office and complained again. I was told I would be removed from their lists, but they said that last time. I have no faith in thier [sic] promises to stop calling.” We infer that this complainant suffered substantial distress.
b. From after the complaint period another complainant, who selected the ‘substantial damage or distress’ option, wrote: “These calls are very distressing. It was late at night and I told them that we didn’t want them to call as we are on the TPS. But … I have received numerous calls … …”. We infer that this complainant suffered substantial distress.
Other arguments, as to engagement and the change of system, were given short shrift; the tribunal considered that the ‘penalty was appropriate (or, indeed, lenient) in the circumstances’.
