DPA case Unite the Union – €42,120 Fine (United Kingdom, 2021)

The Information Commissioner (“Commissioner”) was tasked with determining whether the conduct of Unite the Union (“Unite”), in which it contacted various individuals to promote life insurance, constituted “direct marketing” in contravention of Regulation 21 of the Privacy and Electronic (EC Directive) Regulations 2003, as amended (“PECR”) and whether, if contravened, a monetary fine is warranted in terms of Section 55A of the Data Protection Act (“DPA”). The Commissioner’s office received a total of 27 complaints relating to unsolicited calls for the purpose of direct marketing made to individuals who maintained that they did not consent to such marketing and at least two complainants further complained that they explicitly opted out of such marketing directly to the call operator, yet still received further calls. Upon further investigation the Commissioner discovered that of the 726 853 calls which connected, 57 665 of these calls were to individuals registered with TPS for 28 days or longer. The Commissioner explains Regulation 21 PECR as not permitting a company “to make calls promoting a product or service to an individual who has a telephone number registered with the Telephone Preference Service Ltd (“TPS”)” unless that individual has “given their consent to that company to receive such calls”. The TPS is a company which maintains a register (on the Commissioner’s behalf), in terms of Regulation 26 of PECR, containing numbers of individuals who have indicated that they do not wish to receive direct marketing calls on those lines. In order to confirm that this matter fell within the scope of Regulation 21 PECR the Commissioner considered the definitions of: •“Direct marketing” as set out in Section 122(5) of the DPA 2018; •“Consent” in PECR as set out in Article 4(11) the General Data Protection Regulation 2016/679 (the “GDPR”) read with recital 32, 42 and 43 of the GDPR; and •“Individual” and “subscriber” in terms of Regulation 2(1) of PECR. The Commissioner