Irish Data Protection Commission Case Studies

Prosecutions for calling numbers listed on the NDD opt-out register [30/05/2011]

 

Making marketing calls to the line of a subscriber whose telephone number is recorded on the National Directory Database (NDD) opt-out register is an offence under Regulation 13(4)(b) of Statutory Instrument 535 of 2003 (as amended). 

 

Company X

In April 2009 the marketing activities of Company X, a supplier of windows and doors, came to our attention when we received a complaint regarding a marketing call made by the company.  The call was made to an individual who had exercised his right to have his preference not to be telephoned for marketing purposes recorded on the NDD. 

 

By way of explanation, the company informed us that while going through its database of past customers its operator dialled the wrong number and it apologised for its mistake.  It provided us with details of the intended number.  Unfortunately for Company X, that number was also on the opt-out list of the NDD not to receive marketing telephone calls.  In view of this we were not in a position to accept their explanation.  In addition, this was the second time that this company had come to the attention of my Office.  We initiated a prosecution in respect of the offence. 

 

In March 2010, at Dublin Metropolitan District Court, Company X pleaded guilty in respect of one charge relating to the making of an unsolicited marketing telephone call to an individual without consent in April 2009 in contravention of Regulation 13(4)(b) of S.I. 535 of 2003 (as amended).  The Court recorded a conviction, imposed a fine of €300 in relation to the offence and directed that our legal costs be paid.

 

Company Y

During 2009 we received three complaints against a telecommunications company (Company Y) regarding marketing calls made by the company to individuals who had exercised the right to have their preference not to be telephoned for marketing purposes recorded on the NDD opt-out register.

 

By way of explanation of two of these incidents, the company informed us that it had to reconfigure its firewall to allow access to new IP addresses following its move to new premises.  The company stated that some of the older software had not been updated with the new addresses and therefore they were unable to connect correctly to the section of the database that held the most up to date NDD information.  According to the company, for this reason these older systems were checking an out of date NDD list while the newer software was reading from the latest list (the NDD opt-out list is updated on a fortnightly basis and is circulated to marketers who are licensed to use it).  This resulted in calls being made to numbers on the opt-out register.  In another case, the company stated that it had obtained the phone number through a customer referral and that an off-shore telemarketing company working on its behalf had made the marketing call in that instance.  The off-shore company had not checked the phone number against the NDD opt-out register resulting in a call for marketing purposes.  We took the view that these explanations demonstrated procedural and system failures within Company Y with regard to its telemarketing activities.  We were satisfied that offences had been committed and decided to prosecute Company Y in respect of those offences as, in line with our policy for prosecutions,  the company had previously come to  our  attention

 

In May 2010, at Dublin Metropolitan District Court, Company Y pleaded guilty in respect of three charges relating to the making of unsolicited marketing telephone calls to individuals without consent, in contravention of Regulation 13(4)(b) of S.I. 535 of 2003 (as amended).  The Court recorded a conviction, imposed a total fine of €1,250 and directed that the company pay our costs.