Next clothing retailer loses appeal over €100 fine in ‘spam’ case

Retailer took appeal to Circuit Court over prosecution by Data Protection Commissioner

Assistant data protection commissioner Tony Delaney. Photograph: Dara Mac Dónaill/The Irish Times

Assistant data protection commissioner Tony Delaney. Photograph: Dara Mac Dónaill/The Irish Times

Wed, Mar 19, 2014, 15:25

A major clothing retailer had a conviction for sending spam email affirmed after it took what is believed to be the first ever such appeal against what it claimed was the severity of a fine of €100 in such a case.

Next Retail Ltd, which has 28 stores in the Republic, had the fine imposed last month after the Data Protection Commissioner prosecuted it for sending the unsolicited marketing material to a woman who had attempted unsuccessfully to unsubscribe from such communications.

Sophie More O’Ferrall of Philip Lee Solicitors, for the commissioner, told the court the original prosecution was for offences under the electronic privacy regulations.

Next faced maximum fines of €5,000 on each of the two charges before the court that day. One of the charges was taken into account.

When the appeal against the severity of the fine came before the Circuit Court today, Judge James O’Donohoe remarked that the fine had been “only €100”.

“And you want to appeal that, is it?”

Counsel for Next, Una Cassidy, told the court the company was “quite concerned about the conviction” as it had no previous convictions for such offences.

Assistant data protection commissioner Tony Delaney outlined details of the case and said it was every person’s right not to receive such unsolicited marketing material. Next had been given a previous warning by the Data Protection Commissioner in 2011 in relation to such spam, he said. Mr Delaney told the court such spam was a “widespread issue”.

He told the court the commissioner operated a ‘two strikes’ policy, whereby it would issue a warning before prosecuting a company for such offences.

Judge O’Donohoe accepted the company had apologised through the commissioner’s office for sending the spam.

But he noted it was not a “first strike”.

Ms Cassidy told the court Next would pay the commissioner’s costs in relation to the appeal. It also paid the office’s costs in the original prosecution in the District Court.

Mr Delaney agreed Next had taken steps to deal with the spam issue. “It looks good on paper; time will tell.”

When Ms Cassidy submitted several times that Next had met the complaint fully, the judge said he was “minded to increase the fine significantly”. He said he would affirm the original conviction.

Mr Delaney said his office was very satisfied with the outcome of the appeal proceedings.

“This outcome demonstrates clearly that not only do the data protection regulations concerned provide strong protections for individuals with regard to their right to opt out of direct marketing but also that the Data Protection Commissioner and the courts treat the infringement of those rights as serious matters of a criminal nature which warrant prosecution and conviction.”

“We expect that every entity in the State which engages in electronic marketing of any kind takes note of this outcome, familiarises themselves with and comply with the regulations which apply to direct marketing and bear in mind that they run the risk of prosecution and conviction if they commit breaches.”