Monday 24 October 2016

Irish Times and Littlewoods Ireland given chances to avoid criminal convictions for breaking e-privacy regulations

Published 04/04/2016 | 16:06

Irish Times
Irish Times

THE IRISH Times and Littlewoods Ireland have been given chances to avoid criminal convictions for breaking e-privacy regulations by sending customers unsolicited emails.

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Following separate investigations by the office of the Data Protection Commissioner, they pleaded guilty to the offences at Dublin District Court today.

Judge John O'Neill said the cases would be struck out if The Irish Times Ltd gave €3,000 to suicide prevention charity Pieta House while Littlewoods must donate €5,000 to the same cause.

Tony Delaney, Assistant Data Protection Commissioner, told Judge O'Neill the important message for companies involved in electronic marketing is that there has to be “robust testing of technology behind their databases”.

The offence, which is under the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, can result in a criminal conviction and a fine of up to €5,000 per incident.

Mr Delaney told the court that a woman, who had an account with online retailer Littlewoods, had opted out of receiving their marketing emails. However she continued to get more of them and in 2014 the data protection watchdog gave them a warning, after which they agreed to donate €2,500.

However, Mr Delaney said the emails resumed last year when two more were received by the woman. One of them was a marketing email headed “show how super your mother is” offering a Mother's Day bargain.

Following the previous complaint, the company did a review of her customer account she was inadvertently opted back in to receive marketing messages. As a consequence of this the lady received more emails after she thought the problem had been resolved. It also caused “a credibility issue” for the office of the Data Protection Commissioner, Mr Delaney said.

Prosecution solicitor Clare McQuillan told the court the company had no prior convictions.

Mr Delaney agree with Shelley Horan BL, for Littlewoods, that the error was an inadvertent accident and the company had co-operated with the investigation and also entered a guilty plea at the first opportunity. He also agreed that Littlewoods had addressed the issue and had agreed to pay €1,078 prosecution costs.

Ms Horan told the court that there had been a human error and the offence was committed unwittingly. The customer has kept her account with the retailer which has spent significant time and effort to address the issue, counsel said.

In relation to The Irish Times Ltd, the Assistant Data Protection Commissioner told Judge O'Neill that a man had subscribed to their “Get Swimming” weekly newsletter but after three or four issues he opted out last year and received a confirmation email. But he received the next issue and then made several further attempts to unsubscribe.

After a number of weeks still receiving the newsletter he contacted their customer care team. Later he received an email with a promotional offer and another newsletter..

Mr Delaney said the man found it distressing that it was so difficult to find a solution and had concerns over the protection of his data. Mr Delaney said that 64 other users were also affected but the fault had been corrected, “after two horses have bolted.”

Defence counsel Eoghan Cole said The Irish Times was disappointed to find itself before the court and accepted that it had fallen short of the required standard. He also asked the judge to note that costs would be paid and had they had co-operated fully. Steps have been taken to remedy the problem which was caused by human error, counsel said adding, “If it had amounted to an overt retail offer and continued to bombard him it would be a different character of act,” counsel said.

Judge O'Neill adjourned the cases until May 23 to confirm that the donations have been made which would result in them being struck out. He said the money would be better spent by going to Pieta House instead of the court recording a conviction.

After the case, The Irish Times released a statement: "The Irish Times today confirmed a breach in Data Protection resulting from the sending of an unsolicited email.  The breach related to an automated email being sent to one of its customers despite the customer having unsubscribed from a service.  This happened due to human error in the set-up of the service. The Irish Times has resolved the issue to the customer’s satisfaction after being made aware of the error by the Data Protection Commissioner."

Commenting on the matter the Managing Director of the Irish Times, Liam Kavanagh, said : “Email is an increasing method of communicating with our customers and we are committed to the highest standards regarding procedures in this area. We have taken the necessary steps to ensure this error does not recur.”

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