Unsolicited marketing text messages sent resulting in prosecution of Company X [08/04/2010]  

My Office received complaints from two individuals regarding unsolicited marketing text messages which they received in the spring of 2008 from Company X. One complainant was a former customer of Company X and the other was an existing customer. Both complainants informed me that they had not consented to receiving marketing text messages from this company. Furthermore, the marketing text messages did not contain an opt-out facility as required.

As part of my Office’s investigation into the matter, we sought the traffic records from the third party company used to send the messages on behalf of Company X to the complainants' mobile phones. We did this to confirm that the messages were sent by Company X and to establish the content of those messages.

The traffic records which we obtained showed that Company X had sent the marketing text messages in question and that the messages did not contain an opt-out facility as required by the regulations in Statutory Instrument 535 of 2003. Following my Office's investigation, I was satisfied that offences had been committed and I decided to exercise my powers to prosecute Company X in respect of those offences. 

In April 2009, at Dublin Metropolitan District Court, Company X pleaded guilty in respect of one charge related to the sending of an unsolicited marketing text message to a customer without consent, in contravention of Regulation 13(1)(b) of S.I. 535 of 2003. The Court recorded a conviction and it imposed a fine of €1,750. Company X also pleaded guilty in respect of one charge related to the sending of a marketing text message to a former customer which did not contain a valid address to which the recipient could send an opt-out request, in contravention of Regulation 13(8) of S.I. 535 of 2003. The Court recorded a conviction and imposed a fine of €1,500. This was the first occasion on which a conviction was recorded in respect of an offence under Regulation 13(8) for failure to include an opt-out facility in a marketing text message.