Comment: Spam sentence sends the right message

25 Oct 2005

Not all of the regulators who go to court end up coming out with their tails between their legs. The Data Protection Commissioner secured the result it wanted recently when a company was sentenced for spamming in Ireland — the first successful prosecution in this country for sending unsolicited phone or email messages.

“Hopefully it sends a message to others,” was the assessment of Seán Sweeney, senior compliance officer with the office of the Data Protection Commissioner (DPC), after the verdict was read out.

The 4’s a Fortune service was operated by Tom Higgins of Manor Kilbride, Co Wicklow — who is perhaps better known as the founder of Irish Psychics Live. His company was found to have sent unsolicited messages to members of the public in March 2004. Since November 2003 under SI535 of 2003 [European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003] the sending of unsolicited commercial mail from Ireland has in some instances been an offence.

The 4’s a Fortune operation worked by having employees call mobile numbers at random until they found a working phone. The call lasted for one or two rings before hanging up, giving the recipient little chance of answering. Instead, on calling back they were told they had cash credit and were offered to dial a premium-rate number to take part in a competition. The DPC argued that these callbacks constituted a message and as such came under the legislation governing spam.

Following a year-long investigation by the DPC, 4’s a Fortune entered a guilty plea in July of this year and the sentence was handed down on 1 September at Richmond District Court in Dublin. The company was fined €300 for each of five complaints from mobile phone users who had received the missed call, plus costs of €1,000.

Sweeney admitted the award would not cover the costs of taking the case. “The important thing is a conviction was registered against 4’s a Fortune,” he said. The legislation allows of fines of up to €1,500 per message but Judge Anne Watkin took into account the fact that it was the first such case, as well as Higgins’ guilty plea and his co-operation with the DPC during the investigation.

Hearing the case, Judge Watkin reportedly expressed her surprise that the legislation didn’t allow a custodial sentence. In fact this option had been discussed when the legislation was originally before the cabinet two years ago. The fact that the judge classed the people receiving the calls as ‘victims’, coupled with her comments on custodial sentences showed how seriously she took the case, Sweeney added.

The DPC is currently investigating two other cases, both involving voice or text messages sent to mobile phones, which may result in prosecutions being taken. At present the office is investigating close to 100 cases in total, Sweeney confirmed.

Since investigation of the 4’s a Fortune case began, complaints about similar promotions have fallen, the DPC noted. This is partly due to the marketing sector taking proper notice of their legal obligations and acting lawfully.

As yet there has been no case of email spam in Ireland, although there have been complaints made to the DPC that are being or have been investigated. Most unsolicited email coming into Ireland originates from outside the country, making it extremely difficult to gather evidence to prosecute a case. Technically, it’s difficult to prove a spammer’s identity, as many bulk mailing operations use techniques to disguise their origin or use ‘zombie’ computers belonging to third parties who are often unaware that their machines have been compromised.

By Gordon Smith