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Unsolicited text messages [2008] IEDPC 4 (31 December 2008)

During the latter half of 2006 a mobile phone service provider informed me of the receipt of a number of unsolicited premium rate text messages by two of its customers relating to adult content subscription services.  The messages were sent by IXT and one of the recipients was a minor.  Both recipients denied that they were existing or previous customers of IXT and they stated that they did not consent to receiving any of the messages.  

When my Office investigated this matter, it was found that both mobile phone numbers had been recycled (this is the industry term to describe the re-use of a mobile number when it has been out of use for a period of time, usually one year).  The numbers were allocated to the new users when they opened their mobile phone accounts.  It was the new users who received the unsolicited text messages.  We were told by IXT that both mobile numbers had entered its database when the original owners (before recycling) had subscribed to its service.  Due to a technical error its systems did not detect that the numbers were recycled, resulting in both new users receiving content when the numbers were reactivated.

My Office communicated my concerns to IXT that its systems did not appear to be sufficiently robust to prevent adult content material being sent inadvertently to a recycled number.  Furthermore, since neither individual could have legitimately consented to receiving the text messages, I considered that the messages were unsolicited for the purposes of direct marketing and in direct contravention of Regulation 13 of Statutory Instrument 535 of 2003.  IXT argued that it was not its intention to send messages to the new users because, as far as its systems were concerned, it was still providing a service to the original customers.

My Office advised IXT, as the data controller, that it would have to take immediate corrective action to satisfy me that it was taking its data protection responsibilities seriously.  I encouraged IXT to consider settling this matter by way of an amicable resolution.  This was an appropriate solution for a company that has proved compliant with data protection requirements in all other respects.  The company, having considered the matter, agreed to refund the charges incurred by both individuals in respect of the premium rate text messages and to offer their written apologies to both individuals.  As a gesture of goodwill, IXT agreed to purchase two kidney dialysis machines for donation to a hospital at a cost of over €27,000.

Given the issues surrounding the sending of adult content messages to recycled mobile phone numbers (including to the phone number of a minor) we referred these to the Communications Regulator(ComReg) for examination.  I was subsequently advised by ComReg that it had been decided to extend the quarantine period for recycled numbers from six months to twelve months.  Comreg also decided to request mobile network operators to advise service providers using their networks when a mobile phone number was placed in quarantine.

This case demonstrates the high risk associated with sending of marketing messages or premium rate services to mobile phone numbers which have been recycled.  It is unacceptable that extra steps were not taken to ensure that adult content was not being sent to the mobile phone of a minor.  Those engaged in the sending and promotion of adult content to mobile phones should take note of this case and ensure they take appropriate measures to comply, not only with their data protection obligations, but also with their obligations under other legislation.  On an overall basis, I welcome the constructive approach to this issue and the amicable resolution.  This is a good indicator of how seriously IXT took this issue.