Three retailers and telecom giant admit in court to sending unwanted marketing messages

More than 2,400 customers had been sent unwanted SMS text messages by Vodafone offering a chance to win tickets for an Ireland v France rugby match, the court was told.

The four firms pleaded guilty to breaching the EC electronic communications privacy and electronic communications regulations, an offence that can result in a €5,000 fine with a recorded criminal conviction.

Human error and technical glitches had been the cause, the court was told.

Vodafone, which has prior convictions for similar offences, was convicted and fined by Judge Bernadette Owens.

She gave the other firms chances to avoid recorded convictions by allowing them time to donate to charities.

Each firm agreed to pay prosecution costs.

Deputy Data Protection Commissioner Tony Delaney agreed with prosecuting solicitor, Aoife O’Carroll, that his office received 150 complaints a year about electronic marketing.

Its first response was to issue a warning to the offender instead of court prosecution.

In the cases before the court today, they had all been warned already by the DPC which operated a “two-strike policy”.

Cari’s Closet

An online and outlet clothing store which specialises in wedding and occasion wear, Cari’s Closet, pleaded guilty to one charge, while nine other charges were withdrawn. Mr Delaney said this case related to an unsolicited direct marketing email to a woman.

She had attempted to unsubscribe on two or three occasions to “opt-out” of receiving marketing messages from the retailer.

However, she complained that she later received a “ridiculous” amount of emails, 43 last December alone. Mr Delaney said the woman described it as “almost harassment”.

The DPC sent Cari’s Closet a warning letter and in February the firm had dealt with it but in May the woman received another email, offering a 50% dress sale from the online retail outlet.

She complained again to the DPC which took it up with the retailer. Its explanation this time was that the customer had unsubscribed from its website but she had not been removed from its mailing list.

The retailer had no prior convictions. Judge Owens was told that the woman’s details had not been removed from its email database. It happened at a time when two staff members had left the firm and the director was on medical leave.

The defence asked the court to note the firm co-operated with the DPC and was apologetic. It had also agreed to pay the commission’s costs.

Judge Owens noted the fashion retailer had put in place processes to ensure it won’t happen again.

She told the firm’s representative it would get the benefit of the Probation of Offenders Act if it donated €600 to the Little Flower Penny Dinners charity which helps combat poverty in south inner city Dublin. Otherwise, it would get a conviction and fined €750.

The case was adjourned until September 23 next.

Shop Direct Ireland Ltd

Online retailer, Shop Direct Ireland Ltd, pleaded guilty to two counts while another five were withdrawn. Mr Delaney said this prosecution involved marketing text messages. The complainant had been an account holder with the defendant, trading as Littlewoods Ireland.

He had asked the retailer on five occasions to remove him from marketing communications. The opt-out instruction in each message was to reply STOP. However, that was in error and should have read LWISTOP.

The complainant thought he was doing it right but the system had been set up wrongly. More promotional messages were sent to him by the retailer.

The error remained undetected until it was brought to the attention of the DPC.

Shop Direct Ireland Ltd had no convictions but had been prosecuted previously for a similar offence arising out of a glitch. In 2016, that case was struck out after he donated a sum to charity.

Pleading for another chance, the company’s barrister, Shelley Horan, said it would donate to charity and the latest offence was a result of human error in setting up the opt-out keyword. Steps have been taken to make sure it won’t happen again, counsel said.

Judge Owens said the firm would be spared a conviction if it donated €2,000 to the Little Flower Penny Dinners another €2,000 to the Peter McVerry Trust. The case was adjourned until September.

Vodafone Ireland

Vodafone Ireland pleaded guilty to five charges while the prosecution did not proceed with another 18 charges on the summons.

Mr Delaney said this case featured two complainants. The first was a man who had received an unsolicited SMS text message offering a chance to win tickets to an Ireland versus France rugby match earlier this year.

He had already asked not to be sent marketing messages and thought he had been opted out until he got the offer. Some 2,436 other customers who had also opted out received the message but only one person complained. He later got an email offer.

The court heard the company’s employee who had built the marketing campaign had not applied a filter resulting in the message being sent to customers who had asked for no promotional messages.

The second complainant had stopped being a customer of Vodafone in 2014 but five years later he received text messages with Vodafone offers.

The DPC was told by the telecom firm that this was an exceptional case where inactive customers had not been removed from their marketing system. Some 19 other people had been affected by this issue.

Mr Delaney agreed with Vodafone’s solicitor that there had been full co-operation and steps have been taken to rectify the problem.

Judge Owens noted Vodafone had prior convictions for similar offences and imposed fines totalling €1,750, which has to be paid within three months.

Just Eat

Just Eat Ireland Ltd, which offers an online marketplace for food ordering and delivery, pleaded guilty to one count while the prosecution dropped another 11 charges. Their case resulted from emails to an “annoyed” customer who had told the firm he wanted to opt-out.

A third party had handled their marketing messages but had technical issues and said it was caused by a “bug”. Brian Gageby BL, for Just Eat Ireland Ltd, asked the judge to note it was unlikely it would happen again as a result of mechanisms put in place.

He submitted that his client met the case in an impeccable manner as he pleaded with the court to accept a charitable donation.

Judge Owens noted it was caused by technical glitches. She said she would apply the Probation of Offenders Act if Just Eat Ireland Ltd, donated €600 the Peter McVerry Trust. The case was also adjourned until September 23 next.