By its notice of appeal dated 4 April 2022 the Appellant (‘Seaview’) challenges a Monetary Penalty Notice (‘MPN’) and Enforcement Notice (‘EN’) served on it by the Respondent (‘the Commissioner’) on 11 March 2022, for using a public telecommunications service for the purpose of making unsolicited direct marketing calls in contravention of regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (‘PECR’).

By a response dated 10 June 2022 prepared by counsel, the Commissioner resisted the appeal.

In a concise document of 26 June 2022 Seaview replied to the Commissioner’s response, addressing exclusively the first ground of appeal.

The matter came before us on 29 September this year for consideration on the papers, Seaview having requested that mode of determination and the Commissioner having consented. We were willing to proceed in accordance with the wishes of both parties, taking the view that it would not be in keeping with the overriding objective (Footnote: ¹) to compel them to attend an oral hearing. That said, in the context of an appeal turning on a disagreement of pure fact, we were conscious of the limitations of the procedure for which the parties had opted. We will touch again on this topic in our analysis below.

We had before us a bundle of over 400 pages.

PECR, reg 21 states:

Under PECR, reg 26, the Commissioner is required to maintain a register of numbers allocated to subscribers who have notified him that they do not wish, for the time being, to receive unsolicited calls for direct marketing purposes. The Telephone Preference Service (‘TPS’) is a company which operates the register on the Commissioner’s behalf. Businesses wishing to carry out direct marketing by telephone can subscribe to TPS for a fee and receive from them a monthly list of numbers on the register.

PECR, reg 21 further provides:

By the Data Protection Act 1998 (‘DPA 1998’) (Footnote: ²), s55A, it is provided that:

The Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 set the limit of any penalty determined by the Commissioner at £500,000.

The appeal is brought under DPA 1998, s55B(5), which gives a right to appeal against the issue of an MPN and/or the amount of the penalty specified in it. It is well-established that on an appeal the Tribunal is entirely unconstrained by the findings and conclusions of the Commissioner. It must simply make its own decision on the basis of the evidence and arguments presented to it.

The background facts were set out in the MPN in these terms.

Elsewhere in the MPN (para 62) the Commissioner noted that in the course of the investigation Seaview had stated that it had written to former Service Monkey customers to inform them about its acquisition of the direct debit book. It seems that no such correspondence was disclosed to the Commissioner. A draft contract for the sale of the direct debit book was disclosed. (Footnote: ⁴) It states a completion date of 1 January 2020. It seems natural to assume that Seaview’s letters to its new customers were sent out soon after the transaction took effect. (Footnote: ⁵)

Data received from the CSP (see above) in the course of the Commissioner’s investigation demonstrated that Seaview made repeated calls to the same individuals during June 2020. Around 400 individuals were called at least four times. One number was called 32 times. Calls often lasted five minutes or more, some longer than ten minutes.

In the MPN, para 69, the Commissioner recorded that two complaints of direct marketing activity by Seaview subsequent to the relevant period (June 2020) had come to light. Further:

The Commissioner’s reasons for imposing the MPN (paras 38-63), can summarised in four propositions. First, Seaview had committed a breach of PECR by making the 4,737 direct marketing calls to persons on the TPS register during the relevant period (June 2020). Second, that breach was serious. Third, the company had not set out deliberately to contravene the Regulations but had been negligent in failing to take reasonable steps to prevent the contravention. Fourth, the proper sanction in all the circumstances was a penalty of £15,000.

By the EN the Commissioner required Seaview to cease or refrain from committing further breaches of PECR. The EN rested on the findings fully set out in the MPN.

In broad agreement with the Commissioner, and making appropriate allowances for the fact that Seaview has not engaged legal representation, we interpret the appeal as resting on three core grounds. (1) The Commissioner was wrong to find that the 4,737 calls were made for direct marketing purposes. (2) The Commissioner was wrong in any event to find that any contravention of PECR was serious. (3) The penalty imposed was excessive. (Footnote: ⁶)

In our judgment, this appeal is without merit. We will deal with the three grounds in turn.

We see very little force in Ground (1), for seven reasons. In the first place, we remind ourselves that Seaview raises no challenge to the proposition that the 4,737 calls were to TPS numbers. Rather, it relies on its contention that all were ‘welcome calls’ and not marketing calls. To our minds, this is, on its face, less than plausible. Why would so much time and so many resources be devoted exclusively to ‘welcoming’ a large cohort of customers who had already been on the company’s books for (seemingly) several months? Secondly, the credibility of Seaview’s case is further diminished by the fact that, on its own case, it had already written to introduce itself to its newly-acquired customers, seemingly in the early part of 2020. In our view, this makes it all the more improbable that the company would have committed time and resources to make fresh contact by telephone for the same purpose. The rationale for a second greeting is nowhere justified or explained. Thirdly, we are not impressed by the complaint that the Commissioner’s findings are not based on ‘evidence’. In our view, they are certainly evidence-based. The absence of direct evidence of the subject-matter of particular calls is not surprising. Evidence of that sort would not ordinarily be found. Contraventions of the applicable legislation do not require a criminal standard of proof and may be established on a balance of probabilities, for which indirect or secondary or inferential evidence may be amply sufficient (indeed, such evidence may, in appropriate cases, sustain allegations which require proof to the criminal standard). Fourthly, we are struck by the evidential weakness of Seaview’s case. The (apparently implausible) claim that the calls were simply ‘welcome calls’ amounts to mere assertion. The Tribunal has been invited by Seaview to deal with the matter on the papers and accordingly no witness has been fielded to make good the grounds of appeal or submit to cross-examination upon them. Nor has any documentary evidence been presented in support of the appeal. We have, for example, been offered no recording of any ‘welcome call’ or any document evidencing training or instruction to staff on the subject-matter to which ‘welcome calls’ were, or were not, to be directed. Fifthly, the data concerning the calls made by Seaview in June 2020 lend significant support to the Commissioner’s findings. We struggle to reconcile the behaviour of Seaview’s workforce with the stated purpose of simply conveying a friendly greeting. Sixthly, we find that the Commissioner was entirely justified in having regard to the evidence of PECR breaches before and after June 2020. That evidence was certainly relevant material tending to support the allegation that Seaview had contravened the legislation during that month. Seventhly, the fact than no relevant complaint was received in relation to the relevant period and few in respect of periods before and after it carries limited weight. The period of the infringement on which the MPN rests was exceedingly brief – 30 days. Moreover, by and large people do not complain – particularly those who are materially, socially, educationally or medically disadvantaged. That is one reason why protective legislation such as PECR is enacted.

This ground sinks or swims with Ground (1). If that ground had prevailed, we would have agreed with Seaview that no breach of PECR, let alone a serious breach, was shown. But having rejected Ground (1), we are entirely satisfied that Ground (2) also falls. On the Commissioner’s findings, with which we entirely agree, Seaview’s contravention of the Regulations was obviously very serious indeed. The facts are eloquent. The number of offending calls and the high proportion which they bore to the overall total speak for themselves. The dirth of complaints self-evidently does not determine the question of the gravity of the breach. All in all, there is, in our judgment, room for the view that, if anything, the Commissioner’s conclusion that the breach was negligent rather than deliberate leans further towards a merciful outcome than the objective facts warranted. (Footnote: ⁷)

The first point taken here is, we think, based on a misunderstanding. Seaview cites DPA, s55C in support of the proposition that the Commissioner was under an obligation to provide an “explanation” for the decision to set the MPN at £15,000. That section requires the Commissioner to publish ‘Guidance’ on how the power to impose FPNs will be exercised. It does not place any obligation on the Commissioner to explain any decision to impose a financial penalty or to set a penalty at a particular level. In accordance with s55C, the Commissioner has duly published the requisite Guidance.

In any event, documents in the bundle provide ample explanation of the Commissioner’s reasons for finding breaches of PECR and for imposing the MPN at the level selected.

Treating the appeal as raising a wider challenge to the proportionality and reasonableness of the level at which the MPN was set, we again find no merit in Seaview’s case. It is evident from the documents in the bundle that the Commissioner gave very careful consideration to the task of setting the penalty. He ultimately fixed the starting-point at £12,000, relying on the one available comparable case, in which a starting-point of £10,000 was selected. The £2,000 differential is explained by the fact that in Seaview’s case a higher weekly incidence of calls to TPS numbers was recorded. In our judgment the Commissioner was also right to judge that there were a number of aggravating factors and that two in particular warranted a 25% uplift to £15,000. The first of these was the fact that the nature of the services marketed by Seaview (insurance of white goods) was such that an appreciable proportion of those affected by unsolicited calls were likely to be vulnerable. The second was that Seaview had not co-operated fully with the Commissioner’s investigation and in particular appeared to have failed to make full disclosure of relevant documentation. We are satisfied that these considerations were evidence-based and relevant, and that the Commissioner was right to rely on them as justifying a modest increase upon the starting-point figure.

We have considered the Commissioner’s Guidance (already mentioned) and his Regulatory Action Policy, also included in the bundle. We see no basis for concluding that the penalty of £15,000 involved any departure from either. Seaview did not so argue.

Stepping back and considering the case in the round, we are satisfied that the penalty of £15,000 was proper and proportionate.

The appeal is not made out. We have concentrated on the core grounds of appeal. In so far as Seaview pursued ancillary points and arguments, we find no substance in them, agreeing with the contentions to the contrary on behalf of the Commissioner.

The appeal is dismissed in its entirety. For the avoidance of doubt, the challenge to the EN necessarily falls given our conclusions on the first two grounds of appeal.