ICO’s Warning to Energy Providers

Written by Lucy Clarke

The Information Commissioner’s Office (“ICO”) has recently fined a large energy consultancy provider £75,000 for breaches of Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).The particular breaches in question-related to the use of unsolicited calls for the purposes of direct marketing.

Under Regulation 21 of PECR, if a company wants to make calls promoting a product/service to a subscriber who has a telephone number registered with the Telephone Preference Service (“TPS”) or Corporate Telephone Preference Service (“CTPS”), then the subscriber must have given their consent to that company to receive such calls. Regulation 26 of PECR requires the Commissioner to maintain a register of numbers allocated to subscribers who have notified them that they do not wish to receive unsolicited calls for direct marketing purposes.

Between 1st May 2019 to 31st March 2021, the consultancy provider utilised a public telecommunications service for direct marketing purposes making unsolicited calls to subscribers whose numbers were listed on the register of numbers kept by the ICO under Regulation 26. During this period, TPS and the ICO received a total of 337 complaints from subscribers whose telephone numbers were registered with the TPS or CTPS and who had not provided valid consent, or who had previously notified the consultancy provider that they did not wish to receive such calls.

The consultancy provider relied on assurances from its third-party data suppliers that the lists had been screened against the TPS and CTPS, but failed to carry out its own due diligence to ensure compliance.

In addition to the £75,000 fine, the ICO also issued an Enforcement Notice ordering the company to cease making direct marketing calls in contravention of regulation 21 within 30 days. The ICO is of the opinion that the number of complaints made were only representative of a small proportion of the actual number of breaches and is unable to confirm exactly how many calls made were in breach of PECR.

This recent decision should be seen as a warning and clear reminder to similar Energy Providers and their agents to ensure that the PECR is complied with at all times.

If you would like further information on the issues discussed in this article, please contact Lucy Clarke or another member of the Litigation and Dispute Resolution team.

About the author

Lucy Clarke

Senior Associate

Lucy Clarke is a Senior Associate who is dual qualified in Northern Ireland, England and Wales. Specialising in litigation and dispute resolution, she has particular experience with contractual disputes, financial services / regulatory matters, energy sector litigation, procurement litigation and intellectual property disputes. Lucy has recently been involved in a number of urgent injunctive matters, high value procurement disputes and has attended the Supreme Court in London.

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