We all know how irritating it can be to receive a text message that turns out to be an unsolicited "spam" message inviting us to make a PPI claim or to seek compensation for an accident we've never had. Similarly unwanted telephone calls with similar themes are a bugbear of modern life.

Millions of such unsolicited messages are sent out by text, email or via phone every day. Although it has long been against the law to engage in such activity, the penalties for transgressors have not been much of a deterrent. Until now.

The catalyst for change appears to have been the case of Christopher Niebel which was published in October 2013. He had been fined £300,000 by the Information Commissioner's Office (ICO) in November 2012 for sending out such unsolicited text messages. But he successfully overturned the fine on appeal to a tribunal. One of the key elements of that appeal decision was that whilst such messages were undoubtedly irritating and annoying to those who received them, the sending of such messages was nevertheless not likely to cause "substantial damage or distress" to the recipients. Currently it is only if there is a likelihood of such "substantial damage or distress" being caused by the activity in question that enables the ICO to impose a fine.

The Department of Culture Media and Sport has therefore proposed an amendment to the existing Privacy & Electronic Communications (EC Directive) Regulations 2003 to lower the bar for imposing penalties and removing the requirement for there to be a likelihood of "substantial damage or distress" in order for the ICO to act. Instead, it is proposed that "annoyance, inconvenience or anxiety" should be enough to justify a monetary penalty being imposed.

The consultation period closes in December 2014. If the law is changed as envisaged, it will become more important for those who engage in electronic direct marketing and calling, to ensure that they comply with the relevant legislation. Otherwise, they could be facing the imposition of civil fines of up to £500,000.

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