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Persistent unsolicited marketing faxes [2008] IEDPC 20 (31 December 2008)

The direct marketing activities of X. resulted in a complaint to my Office during the year.  The complaint concerned repeated fax messages sent by X. to the line of a subscriber.  The complainant provided my Office with a copy of a sample of the faxes he had received.  From an initial examination of the complaint, there were two clear issues of concern.  In the first place, the fax number of the complainant was registered on the NDD opt-out register.  Secondly, the complainant's numerous attempts to opt-out of receiving fax messages from X. using the fax number provided by the company had failed because the number provided appeared to be out of service.  As a result, he continued to receive unsolicited marketing fax messages.

My Office contacted X. and requested an explanation.  X. acknowledged that eight fax messages had been sent to the individual.  Regarding the inability of the complainant to 'opt out', X. acknowledged that an internal error resulted in an incorrect digit being inserted in the 'faxback' number printed on the fax messages sent to the complainant.  Regarding the inclusion of the complainant's fax machine number on the NDD opt-out register, X. advised that the complainant's number was supplied to it by a third party provider.  That list was then sent to its fax marketer for checking against the NDD.  X. stated that the fax marketer advised it that the complainant's number was not listed on the NDD at the time when the fax messages were issued.  However, my Office's investigation confirmed that the complainant's number had been listed on the NDD since 2007.

Following the intervention of my Office, X. agreed to take a number of corrective measures to address the shortfalls in its fax marketing operations, including deletion of the complainant's number from its marketing database.  X. also indicated that it wished to attempt to resolve the complaint by amicable resolution.  In that context, as a goodwill gesture, X. offered laptop equipment to the value of €2,500 to a charity of the complainant's choice.  It also communicated a letter of apology to the complainant and an undertaking that he would not receive any further marketing from X. unless he specifically requested such information.  The complainant was happy to have his complaint resolved on this basis.

This complaint demonstrates the need for any data controller engaged in direct marketing by post, fax, email or text message to have appropriate procedures in place to ensure that it meets the requirements of the law in this area.  In particular, a valid facility to opt-out must be provided and must be working.