The trouble with asking for a second opinion is it might be worse than the first one. Reactiv Media get an increased penalty after appealing to the tribunal.
In 2013 the First-tier Tribunal (Information Rights) (“FTT”) heard the first appeal against a monetary penalty notice (“MPN”) imposed by the Information Commissioner’s Office (“ICO”). One of the first things in the appeal (brought by the Central London Community Healthcare NHS Trust) to be considered was the extent of the FTT’s jurisdiction when hearing such appeals – was it, as the ICO suggested, limited effectively only to allowing challenges on public law principles? (e.g. that the original decision was irrational, or failed to take relevant factors into account, or took irrelevant factors into account) or was it entitled to approach the hearing de novo, with the power to determine that the ICO’s discretion to serve an MPN had been exercised wrongly, on the facts? The FTT held that the latter approach (similar to the FTT’s jurisdiction in appeals brought under the Freedom of Information Act 2000 (FOIA)) was the correct one, and, notably, it added the observation (at para. 39) that it was open to the FTT also to increase, as well as decrease, the amount of penalty imposed.
So, although an appeal to the FTT is generally a low-risk low-cost way of having the ICO’s decision reviewed, it does, in the context of MPNs served either under the Data Protection Act 1998 (DPA) or the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), potentially carry the risk of an increased penalty. And this is precisely what happened when a direct marketing company called Reactiv Media recently appealed an ICO MPN. Reactiv Media bad been held to have made a large number of unsolicited telephone calls to people who had subscribed to the Telephone Preference Service (“TPS”) – the calls were thus in contravention of Reactiv Media’s obligations under regulation 21 of PECR. The ICO determined that this constituted a serious contravention of those obligations, and as some at least of those calls were of a kind likely to cause (or indeed had caused) substantial damage or substantial distress, an MPN of £50,000 was served, under the mechanisms of section 55 of the DPA, as adopted by PECR.
Upon appeal to the FTT, Reactiv Media argued that some of the infringing calls had not been made by them, and disputed that any of them had caused substantial damage or distress. However, the FTT, noting the ICO’s submission that not only had the MPN been properly served, but also that it was lenient for a company with a turnover of £5.8m (a figure higher than the one the ICO had initially been given to understand), held that not only was the MPN “fully justified” – the company had “carried on its business in conscious disregard of its obligations” – but also that the amount should be increased by 50%, to £75,ooo. One presumes, also, that the company will not be given a further opportunity (as they were in the first instance) to take advantage of an early payment reduction.
One is tempted to assume that Reactiv Media thought that an appeal to the FTT was a cheap way of having a second opinion about the original MPN. I don’t know if this is true, but it if is, it is a lesson to other data controllers and marketers that, after an appeal, they might find themselves worse off.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.