Studios MG Limited – €46,800 Fine (United Kingdom, 2020)

Studios MG Limited (SMG), a London based ‘software design and build’ company, sent, at the beginning of the Covid19 related lockdown measures, an email advertising surgical masks and providing a link to a vendor’s website to at least one, but an estimate of 8000-9000 email addresses. Did SMG act in breach of regulation 22 PECR, and, if so, are the conditions for a monetary penalty under section 55 A of the Data Protection Act 1998 (DPA) met? The Commissioner finds that SMG contravened regulation 22 PECR. In confirming the contravention she emphasizes that emails were obtained from a variety of undefined resources, and that no efforts were made to obtain or demonstrate consent. In addition, the Commissioner notes in this context, had SMG deleted the relevant database as well as their platform provider account, following initiation of the Commissioner’s investigation, rendering an accurate determination of the number of affected individuals impossible. She considered whether the ‘soft opt-in’ exemption provided by regulation 22 (3) PECR was relevant, but denied this for SMG being a ‘software design and build consultancy’, i.e. a business without any evident relation to the sale of protective equipment. The Commissioner continues by examining the conditions for issuing a monetary penalty under section 55A DPA. In the context of confirming the necessary seriousness of the contravention she makes specific reference to the ‘Information Commissioner’s guidance about the issue of monetary penalties prepared and issued under section 55C(1) of the Data Protection Act 1998’ to support the fact that such qualified breach may be constituted even by a single traceable incident. In particular, she later elaborates, did the number of complaints not necessarily reflect the gravity of a potential breach, since most recipients could be expected not to go as far as making an official complaint but would rather just delete or ignore an unsolicited marketing email. With a view to