Why does nobody listen to me?
Quite a few media outlets and commentators have picked up on the consultation by the Department for Culture, Media and Sport I blogged about recently. The consultation is about the possibility of legislative change to make it easier for the Information Commissioner’s Office (ICO)(ICO) to “fine” (in reality, serve a civil monetary penalty notice) on people or organisations who commit serious contraventions of ePrivacy law in sending unsolicited electronic marketing messages (aka spam calls, texts, emails etc).
However, almost every report I have seen has missed a crucial point. So, we have The Register saying “ICO to fine UNBIDDEN MARKETEERS who cause ‘ANXIETY’…Inconvenience, annoyance also pass the watchdog’s stress test”, and Pinsent Masons, Out-Law.com saying “Unsolicited marketing causing ‘annoyance, inconvenience or anxiety’ could result in ICO fine”. We even have 11KBW’s formidable Christopher Knight saying
the DCMS has just launched a consultation exercise on amending PECR with a view to altering the test from “substantial damage or distress” to causing “annoyance, inconvenience or anxiety”
But none of these spot that the preferred option of DCMS, and the ICO is actually to go further, and give the ICO the power to serve a monetary penalty notice even when no harm has been shown at all
Remove the existing legal threshold of “substantial damage and distress” (this is the preferred option of both ICO and DCMS. There would be no need to prove “substantial damage and distress”, or any other threshold such as ‘annoyance, inconvenience or anxiety’…
So yes, this is a blog post purely to moan about the fact that people haven’t read my previous post. It’s my blog and I’ll cry if I want to.
Chris Knight is so formidable that he’s both updated the Panopticon post and pointed out the oddness of option 3 being preferred when nearly all of the consultation paper is predicated on option 2 being victorious.