Eldon Insurance Services Limited – Court Ruling (United Kingdom, 2021)

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. 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). = 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 t