Judge gives green light to pest calls and texts

‘Hugely disappointing’ decision clears way for unscrupulous companies to carry on.

Rogue firms which bombard millions with nuisance texts and calls have been given the go-ahead to continue the plague.

In a devastating blow for consumers, a judge has ruled a decision by the Information Commissioner’s Office to fine the owner of a telecoms company for sending out 840,000 spam messages EVERY DAY was unfair. That’s despite him admitting the firm had been breaking the law.

Campaigners last night said the ruling effectively clears the way for other companies to torment members of the public with unsolicited calls and texts.

Chris Niebel and business partner Gary McNeish, of Manchester-based Tetrus Telecoms, were reaping up to £8,000 a day sending out texts offering to pursue PPI refunds and compensation to people involved in car accidents. Their huge operation was run from Manchester and Birmingham bases but also had staff as far away as Thailand, where McNeish is believed to live. In November they were fined £440,000 for breaching privacy regulations in the first crackdown of its kind.

At the time, the ICO heralded it as a major breakthrough that would force rogue firms to think twice before targeting Brits with spam texts. But Niebel appealed his £300,000 share of the fine and last week won a surprising victory at a tribunal hearing.

In his ruling, Judge Nicholas Warren said while the firm had broken the law for financial gain and caused irritation, they had not caused distress.

The ICO is vowing to fight the “disappointing” decision. But last night campaigners blasted it.

David Hickson, of the Fair Telecoms Campaign, said: “The company clearly broke the law here yet appear to be getting off scot free. This news will encourage firms knowing the ICO are ineffective in stopping them.

“We need the government to tighten the law on this quickly. But what we also need is for a change to the way PPI and claims management companies do business. We should outlaw firms buying leads from companies like Tetrus Telecoms.

“Many companies operate outside the law from abroad and will be impossible to stop. The only way we can halt the problem is by telling the regulated UK-based firms that it is unacceptable and illegal to buy information for potential customers this way.”

Last week’s decision at The General Regulatory Chamber, who hear appeals against government regulators, noted that Chris Niebel’s actions were “deliberate and designed for financial gain.”

It added: “He used unregistered sim cards which aided his concealment and he had no effective method of screening a number from receiving further texts when the recipient asked for them to stop.”

But the judge added: “It takes a very short time indeed to give a tut of irritation and delete a spam message such as these and we would regard any loss of opportunity costs as more notional than real.

“In our judgment the effect of the contravention is likely to be widespread irritation but not widespread distress.”

An ICO spokesperson said: “This is a disappointing result, particularly when the Tribunal recognised that Niebel and his company, Tetrus, had been engaged in sending unwanted text messages on an industrial scale. We are now looking to appeal the decision to the Upper Tribunal.

“The public is clear that it wants to see a stop put to nuisance text messages. The fines we issue help to achieve that, and if we are prevented from issuing fines then it’s fair to expect that the public will receive more of these messages.

“This is another reminder of why we’re pushing for a change in the law to make it easier for us to issue penalties.”

Chris Niebel was unavaliable for comment.

HOW IT WORKED:

It was in 2009, that Niebel and McLeish, from Manchester, set up Tetrus Telecoms.

The company’s computer whizzkid McLeish, developed systems that automatically sent text messages to millions whose numbers were often dialled at random in breach of privacy regulations. Usually, the texts said that the sender had evidence that the recipient was owed compensation from an accident or a mis-sold PPI policy. Examples of texts sent out by Tetrus Telecoms included: “CLAIM TODAY you may be entitled to £3500 for the accident you had. To claim free, reply CLAIM to this message.

To opt out text STOP. Thank you.”

But asking for replies was nothing but an outrageous con. Most of the numbers were generated by a computer. So any reply meant the duo knew the mobile number was in operation.

These ‘live’ numbers provided a gold-mine as they earned the company a fortune by selling them on for up to £5 each.

IN MY VIEW: MIKE CROCKART

Mike Crockart is the Edinburgh West MP who set up an All-Party Parliamentary Group looking at nuisance calls.

The department responsible for telemarketing, the Department of Culture, Media and Sport, also currently has a Committee looking at the issue. Mike is trying to pilot a private member’s bill through the Commons that would clamp down on the problem.

“For the last few years it’s seemed from complaints data that the number of ‘nuisance calls’ has run into the tens of thousands. That was bad enough for me to launch my campaign with The Sunday Post, but Ofcom’s recent study seems to suggest that the true figure may be more like tens of millions of calls every single month. “Last week’s decision is hugely disappointing.

“It gives unscrupulous companies a licence to continue to text people who have not given their permission until DCMS brings in measures to tackle the nuisance. The timescale for DCMS to take action looks like it will be around a year. The decision shows exactly why regulators need stronger powers to tackle rogue companies which rely on breaking the law to continue.

“My Bill due to have its second reading on 1st November will try to tackle this by reducing the level of harm which regulators need to prove from ‘distress’ to ‘annoyance, inconvenience or anxiety’. People are sick and tired of being pestered by text and with cold calls. The Government needs to take action on this now and back my Bill it’s the quickest route to bringing the industry under control.”

Richard wins £5k from pests

A Cold-calling law firm have been forced to hand over £5,000 to a father-of-three after harassing him at home in the first case of its kind.

Last year, Middlesex businessman Richard Herman hit the headlines when he took a nuisance call company to court for wasting his time. But last week, the 53-year-old secured a greater victory, which could open the floodgates to further claims from the millions of homeowners plagued by similar unwanted calls.

Last year, Richard who had signed up to the Telephone Preference Service in the belief it would stop cold calls was angered to be receiving calls about PPI. When they continued he started charging them £10 per hour and took them to the small claims court to stump up. That victory saw him take home £220 and plaudits from around the world.

But in a stunning new victory, the businessman pursued an unnamed law firm, who wrongly claimed he’d had an accident, for damages under cold-calling law, The Privacy and Electronic Communications Act of 2003. He said they had committed 35 breaches of law and demanded £10,000.

Last week, the red-faced company a huge international legal practice with a multi-million pound profits we are unable to name agreed to pay him £5,000 in an out-of-court settlement. Last night Richard said: “I drafted a 14-page letter of 5,000 words that highlighted my case. By repeatedly cold-calling me about an accident I had never had they had breached the law a number of times. For each time they cold-called me I charged them £160 in damages and a further £160 for refusing to reveal who they were. It soon added up.

“For other things like inciting me to lie I charged far more, closer to £1,000. In all it added up to just under £10,000, which is the limit for small claims court proceedings. I wrote to them in August and in September they got back to me with an offer. The money eventually cleared last week. It’s incredible really. It took me around eight days to draft my letter but I now have it in a template which I’ll freely share with people on www.saynotocoldcalls.com.

“I think the ICO have fined around four or five companies. I’ve done the same. Illegal cold-calling happens because it makes money. Making it more illegal won’t stop it. The only way to change it is to ruin the economy of it and make it collapse.”

Additional reporting by James Millar