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In June 2011, we received a complaint from an individual who received an unsolicited text message from Advance Pitstop in Dundrum. He informed us that he had never given his consent to receive marketing text messages from Advance Pitstop. We had previously sent a formal warning to Advance Pitstop in April 2011 informing it that, if we received any further complaints where offences were committed, we would prosecute it for those offences.

 

In this case, Advance Pitstop stated to us that it collected customer data via a form which customers were asked to complete in the branch. This included a tick box option for customers' marketing preferences. Advance Pitstop was unable to find in its records a form filled out by the complainant. The complainant also insisted that he did not fill out such a form. On this basis we decided to take prosecution proceedings against Advance Tyre Company t/a Advance Pitstop under Regulation 13 (1)(b) of SI 535 of 2003 (as amended) for the sending of an unsolicited marketing text message to an individual without consent.

 

On 11 June, 2012, at the Dublin District Court, Advance Tyre Company Limited pleaded guilty to the sending of an unsolicited text message to the complainant without consent. The Court accepted the guilty plea and it applied the Probation of Offenders Act on condition that Advance Tyre Company Limited pay €1,000 to a charity, the Laura Lynn Foundation. Advance Tyre Company also agreed to pay the prosecution costs incurred by the Office.

 

 

At the same court sitting in the Dublin District Court, Ocsas Holdings Limited faced six charges arising from a complaint we received in July 2011 regarding unsolicited text messages and emails which the complainant received from the Fitzgerald Group. He informed us that he signed up to a loyalty card called "BeneFitz" in December 2010. At the time he said he ticked a box indicating that he did not wish to receive any marketing communications from the company. Shortly afterwards, he began to receive both unsolicited marketing emails and text messages from the group. We had investigated a previous complaint regarding the Fitzgerald Group which resulted in a formal warning to it in February 2011.

 

The complainant emailed the Fitzgerald Group on two occasions asking to be removed from both the email and text message database of the Fitzgerald Group. He was informed by the Fitzgerald Group on both occasions in January and February 2011 that his details had been removed. However, the complainant then received further unsolicited marketing text messages in June and July 2011, prompting his complaint. It was clear to us that the Fitzgerald Group had not put proper procedures in place to ensure compliance with its obligations with regard to its marketing operations despite the previous warning.

 

On this basis the Commissioner decided to prosecute the Fitzgerald Group under Regulation 13(1)(b) of SI 535 of 2003 (as amended) in relation to the sending of an unsolicited marketing text message to an individual without consent.

The Court accepted one guilty plea from Ocsas Holdings Limited T/A The Fitzgerald Group, etc. The Court ordered that it pay €1,000 to the Laura Lynn Foundation and it applied the Probation of Offenders Act. Our prosecutions costs were also recouped from the defendant.

 

 

In early 2012, we received two complaints from individuals regarding unsolicited text messages sent by Citywest Resort Limited (trading as the Citywest Hotel, Conference, Leisure and Golf Resort) without consent and without the inclusion of an opt out option. All marketing emails promoted the Citywest Health and Leisure Club. Both complainants informed us that they had repeatedly contacted the Leisure Club requesting to be removed from the marketing database but they continued to receive further unsolicited marketing text messages. Previously, in August 2010, we had sent a formal warning to Citywest Health and Leisure Club with regard to its future marketing activities.

 

In response to our investigations, the Leisure Club admitted that it could not confirm that it had consent to send marketing text messages to either complainant. It stated that the numbers were obtained from its system of all active members but that they should not have been included in the marketing campaign. It also informed us that it was not aware that the opt-out option should have been included in the original text message as it always sent a follow up opt out text message.

 

Having probed this matter further with the service provider who sent the text messages on the Leisure Club’s behalf, there was no evidence to suggest that a follow up opt out message was sent to the complainants. The complainants also informed us that they did not receive such follow up opt out messages. It was clear to us that Citywest Health and Leisure Club had not heeded our previous warning letter of August 2010. The Commissioner decided, therefore, to take prosecutions against Citywest Resort Limited in relation to these offences.

 

On 19 November 2012, Citywest Resort Limited faced forty six charges at the Dublin District Court. It pleaded guilty to the sending of unsolicited marketing text messages to the two complainants without consent. Citywest Resort Limited was convicted on two counts and a fine of €1,000 was imposed. The prosecution costs were recovered from the defendant.

 

 

In 2010 we received a number of complaints about Therapie Laser Clinics Ltd in relation to the sending of unsolicited marketing text messages without consent and without an opt out facility. In some cases, the marketing messages promoted a sister company, Optilase. Following our investigation, Therapie assured us at the time that it would remove each complainant’s mobile phone number from its database. We issued a formal warning to Therapie in early 2011 to the effect that any further offences committed would be prosecuted.

 

In 2012 we received two further complaints regarding unsolicited marketing text messages sent by Therapie. One of the complainants was among those who complained in 2010 in relation to the issues described above. The second complainant stated that he had never given his mobile phone number to Therapie previously.

 

In response to our investigation, Therapie informed us in March 2012 that it was unable to confirm whether marketing text messages were sent to one complainant’s phone as it could not see the number on its system. We requested information from Therapie’s text service provider in relation to the text messages sent to the complainant. It informed us that Therapie had sent it an email requesting that the complainant’s number be removed form the database. This email was sent on the very same date on which Therapie informed us that it could find no record of the complainant’s number.

 

The Commissioner decided to prosecute Therapie on eight charges. In the Dublin District Court, the defendant entered a guilty plea on four charges. The Court convicted the defendant on two charges and it took two charges into account. It imposed a total fine of €4,000. The prosecution costs were recovered from the defendant.

 

 

On 3 December 2012, we prosecuted the following companies at the Dublin District Court.

 

 

On the basis of one complaint from a member of the public we summoned Meteor Mobile Communications Limited on seven charges. The company pleaded guilty to one charge of sending an unsolicited marketing text message without consent. Meteor stated that due to human error the normal protocols were lifted in relation to a particular marketing campaign. This resulted in the complainant receiving an unsolicited marketing text message despite being previously opted out.

Of significant concern was the fact that Meteor admitted that unsolicited marketing text messages were sent to between 11,000 and 18,500 individuals due to this human error.  

The Court ordered Meteor to make a charitable donation of €5,000 to the Children’s Hospital in Temple Street and the Probation of Offenders Act was applied. The prosecution costs were recovered from Meteor.

 

 

Hutchison 3G Ireland Limited (Three) entered guilty pleas in respect of three out of seven charges for offences concerning an unsolicited marketing text message, an unsolicited marketing email and an unsolicited marketing phone call to different individuals.

In the first case, the complainant received an unsolicited text message to his mobile phone number. This person had previously opted out of receiving marketing communications from Three.

In the second case, the complainant was a former customer of Three who had requested that no direct marketing contact be made to her in any form. Due to what was described as a coding error an unsolicited marketing email was sent to the complainant without consent.

In the third case, the complainant had opted out of receiving marketing phone calls. He received a marketing phone call from a representative on behalf of Three.

The Court ordered Hutchison 3G Ireland Limited to donate €2,500 to the Children’s Hospital in Crumlin and the Probation of Offenders Act was applied. The Office’s prosecution costs were recovered from the defendant.

 

 

The Carphone Warehouse Limited entered guilty pleas in respect of two out of ten charges relating to the sending of unsolicited marketing emails to two individuals.

In both cases the complainants received unsolicited direct marketing emails without having been opted in to receive same.

The Court convicted The Carphone Warehouse Limited on both counts and it imposed a fine of €1,250 in each case. The prosecution costs were recovered from the defendant.