The Department of Culture, Media and Sport (DCMS) is currently consulting on proposals to make it easier for the Information Commissioner’s Office to take enforcement action against those responsible for unsolicited direct marketing calls and text messages.

In the last 3 years complaints to the Information Commissioner’s office about unsolicited marketing calls and text messages have risen from approximately 7,500 to over 160,000.

At present the Electronic Communications Regulations 2003 (as amended) sets out the law with regard to direct marketing by electronic means which includes telephone, fax, e-mail, text and picture messages and automated calls. Under a combination of this law and the Data Protection Act 1998 fines of up to £500,000 can be issued for non-compliance.

However, in order for a monetary penalty to be issued the party concerned must have “seriously contravened” the relevant legislation in a such a way that the contravention was likely to cause “substantial damage” or “substantial distress” and this contravention was either “deliberate” or the party concerned “knew, or ought to have known, that contravention would occur and failed to prevent it”.

The wording “substantial damage” and “substantial distress” has proved problematic and a £300,000 fine issued in November 2012 to the director of a Stockport based business which had sent millions of unlawful spam text messages was overturned on the basis that emotional turmoil did not constitute “substantial damage” and the text messages in the hands of the recipients were an “irritation” rather than a “substantial distress”.

Conscious that unsolicited marketing calls and text messages are increasing becoming a problem (or at least an irritation) to most, the DCMS has opened a consultation which is based on a proposal to lower the legal threshold for consumer harm from “substantial damage” and “substantial distress” to a much lower threshold of “causing annoyance, inconvenience or anxiety” or to remove the threshold altogether. It is hoped that such a change would make it far easier to issue monetary penalties with a view to this being a substantial deterrent against those beaching the current regulations.

If you are a consumer, business that partakes in direct marketing, a direct marketing company, service provide or other interested party then you can view and respond to the consultation (which closes on the 7th December 2014) here:

If you are concerned about whether your organisation complies with the current regime on direct marketing and/or data protection, then please do not hesitate to contact me at or 0161-930-5151 or @mancier

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