Salon fined for unsolicited texts


A beauty salon and a prominent mobile phone company have been convicted and fined for sending unsolicited marketing material to customers.

Dublin-based Therapie salon and the Carphone Warehouse were among four companies in court today to face prosecutions taken by the Data Protection Commissioner (DPC).

Dublin District Court heard Therapie had sent marketing text messages to a customer this year with no option to opt out, even though she had asked the company to remove her number from its database in 2010. She had been assured this had been done and that she would no longer receive such messages.

She had originally given her number to a company called Optilase when seeking a quotation for laser eye surgery in 2008. The court heard Optilase was a sister company of Therapie and that the woman's phone number had been kept on file and shared.

Assistant data protection commissioner Tony Delaney told the court that this was "truly shocking from a data protection perspective".

Mr Delaney said the commissioner's office had been left "totally frustrated" by the lack of engagement it had had from Therapie in the course of its investigations.

"We have always found it very difficult to get answers from them," he said.

Counsel for the company said it took full responsibility for the issue and that "comprehensive measures" had been put in place to deal with the data protection concerns. The managing director of the company had taken control of the issues himself in a way that he had not thought necessary in the past, as the company's marketing material had been handled by a third-party.

Judge John O'Neill said the company had been responsible for "a clear lie" when it told the data protection commissioner it could not find her number on a database, while at the time time it was instructing the third-party company to remove her number.

He convicted the company on two charges relating to sending unsolicited messages and fined it €2,000 on each count. He took two other charges into account.

Carphone Warehouse was fined €1,250 on each of two charges relating to the sending of an unsolicited email marketing messages. The court heard the company had previously been warned in relation to similar breaches, although it had no previous convictions.

Meteor was also prosecuted over the sending of an unsolicited marketing text. The customer who complained to the DPC had previously gone to "some lengths" to ensure he would not be contacted by the company, the court heard.

While the customer was the only one who complained, the message had been sent to between 11,000 and 18,500 people who should not have received it, the court heard.

Sophie More O'Farrell of Philip Lee solicitors, acting for the commissioner, agreed that while Meteor had no previous convictions for such offences, it had previously had the benefit of the Probation Act.

Judge O'Neill said that if the company paid €5,000 to Temple Street children's hospital by December 17th, he would strike out the charge. If the money was not paid by that date he would convict and impose a fine of €5,000.

Hutchison 3G, trading as Three, was prosecuted on three counts - one of sending an unsolicited email, one in relation to an unsolicited phone call, and a third in relation to an unsolicited marketing text message sent to deputy data protection commissioner Gary Davis.

Judge O'Neill asked the company to pay €2,500 to Crumlin children's hospital by December 17th. He said if such payment was made he would strike out the charge. He took two of the three charges into account.

In all cases the companies pleaded guilty and the court heard they had covered the DPC's costs.

In a statement afterwards, the Data Protection Commissioner's office said it was satisfied with the outcome.

This once again sent a "strong message" that breaches of data protection law would be punished "from the largest telcos down to small operators".

The office said it was particularly concerned to be prosecuting telecommunications companies again. If they did not get the clear message this time, then it would have to seek fines of €250,000 so the message was clearly understood.