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Direct electronic marketing and appeals to ICO notices 

 

The Information Tribunal rejected an appeal against enforcement action by the Information Commissioner in (1) Leave.EU Group Limited (2) Eldon Insurance Services Limited v. The Information Commissioner (EA/2019/00-54-0059) . The Commissioner imposed Monetary Penalty Notices of £60,000 against Eldon and £45,000 against Leave.EU for sending out over a million political newsletters containing Eldon’s insurance advertisements, in breach of regulation 22 of the Privacy and Electronic Communications Regulations 2003.  The Tribunal robustly rejected the Appellants’ attack on the procedure followed by the Commissioner, emphasising that the Tribunal conducts a full merits review which can cure procedural defects. The Tribunal made clear that, where individuals consent to receive one type of communication (here, a political newsletter), it does not authorise the ‘bundling’ of marketing communication unless there is valid consent to do so.  Leave.EU’s privacy notice was too ambiguous to amount to valid consent for marketing from third parties. The Tribunal relied on Microsoft Corporation v McDonald [2006] EWHC 3410 Ch to find that Eldon did ‘instigate’ the transmission of the marketing material and so breached Regulation 22 alongside Leave.EU. This case underlines the Tribunal’s robust approach to the issue of consent in the context of marketing as well as its limited interest in procedural attacks on the Commissioner’s decision-making.