UK’s data protection watchdog, circa 2010: Curse you, nuisance callers! We’re going to fine you up to £500,000 if you break the law!
Nuisance callers: What’s that, you say? Can’t hear you over these rustling bankruptcy declaration papers!
UK’s data protection watchdog, circa 2018: Oh. Hmm. OK, how about this: we don’t fine the companies; we personally fine the companies’ bosses!
That’s the plan that the Department for Digital, Culture, Media and Sport (DCMS) is now mulling. Last week, the data protection watchdog said that it’s only managed to recover a little over half – 54% – of the £17.8 million in fines issued for nuisance calls since 2010, given that companies go into belly-up liquidation mode to slip out from under the fat penalties.
Ofcom, the UK’s communications regulator, estimates that British consumers were pestered with 3.9 billion nuisance phone calls and texts last year.
The DCMS says that over the past two years, the Information Commissioner’s Office (ICO) issued 23 companies more than £1.9m in fines for nuisance marketing. It’s now easier for regulators to fine those who breach the direct-marketing rules, given that the government has forced companies to display their number when calling customers and has increased fines for wrongdoers.
Ofcom data suggests this action is working: complaints to the ICO and Ofcom have fallen for two consecutive years.
But the nuisance-calling firms play whack-a-mole. As it now stands, only the businesses themselves are liable for the fines. Some directors try to escape paying penalties by declaring bankruptcy. Then they scurry off, only to pop up under a different name and start the pestering anew. The DCMS notes that this is illegal: failing to adhere to a ruling can lead to a prison sentence. Also, the UK’s Insolvency Service can disqualify people from boardroom positions for this kind of shenanigan.
The idea of personal liability for the bosses of bombard-you-with-calls firms, with fines that could reach £500,000, was first unveiled by the government in 2016 and was meant to take effect a year ago.
The DCMS press release quotes Margot James, the Minister for Digital and the Creative Industries:
Nuisance calls are a blight on society and we are determined to stamp them out. For too long, a minority of company directors have escaped justice by liquidating their firms and opening up again under a different name.
We want to make sure the Information Commissioner has the powers she needs to hold rogue bosses to account and put an end to these unwanted calls.
Bring it on, the ICO says. Steve Wood, the ICO Deputy Commissioner (Executive Director- Policy):
We have been calling for a change to the law for a while to deter those who deliberately set out to disrupt people with troublesome calls, texts and emails. These proposed changes will increase the tools we have to protect the public.
The industry is also gung-ho. The Data & Marketing Association (DMA) – a marketing trade body that also runs the Telephone Preference Service (TPS) on behalf of the ICO – sent around this statement from John Mitchison, Director of Policy and Compliance:
It should come as no surprise that individuals willing to skirt the law when it suits them are also ready to do the same to avoid paying their debts. That’s why we wholeheartedly support the extension of fines to the individuals that are behind these rogue businesses. The introduction of these new laws would target the individuals profiting from these rogue businesses, making them think twice about breaking the law if there is a real threat that they may be personally liable.
The plan would entail amending the Privacy and Electronic Communications Regulations legislation to make directors liable for nuisance call fines. If a firm has multiple directors, each could be liable for a fine.
Consultation on the change will be closed in August.