Shock court ruling gives phone pests the right to annoy us all

Fed up with nuisance calls and texts? The situation could get worse after a judge overturned a fine on one of the biggest culprits, reports Simon Read

The curse of texts and telephone calls from unscrupulous companies offering to help consumers make claims for mis-sold payment protection insurance (PPI) looks set to worsen. The cold callers who contact millions of us without permission have been given a massive boost with the news that one of the biggest culprits has overturned a fine imposed by the Information Commissioner's Office (ICO).

Last November, the bosses of Tetrus Telecoms – Chris Niebel and Gary McNeish – were ordered by the ICO to pay a penalty of £440,000 after the watchdog said the firm had "plagued the public with millions of unlawful spam texts over the past three years". The investigation included raids at the company's premises in Stockport in August 2011, and at the Manchester home of Mr Niebel in February last year.

Evidence gathered by the regulator revealed that Tetrus was using unregistered pay-as-you-go SIM cards to send out 840,000 illegal text messages per day, which raked in between £7,000 and £8,000 per day for the firm. The ICO said it had received more than 400 complaints about spam texts linked to Tetrus.

The Information Commissioner, Christopher Graham, said at the time: "The two individuals made a substantial profit from the sale of personal information. They knew they were breaking the law, and the trail of evidence uncovered by my office highlights the scale of their operations."

It was the first time that a telemarketing company had been caught and fined in this way, but there have been several more incidents this year. Most notably, the Swansea-based business featured in the BBC's fly-on-the-wall documentary The Call Centre was fined £225,000 following more than 2,700 complaints about calls between May 2011 and December 2012.

The business operates under the name Save Britain Money and is led by Neville "Big Nev" Wilshire. Its Nationwide Energy Services was hit with a £125,000 penalty, while its PPI claims manager We Claim You Gain was fined £100,000. Mr Wilshire, who earns more than £1m a year, uses such catchphrases as "smile as you dial" to encourage his 700 staff to make 1.5 million unwanted calls a year selling boilers or PPI claims services.

The battle to tackle rogue callers looked positive until last week when, in a shock move, bosses at Tetrus had their fine overturned at a tribunal. The panel of three judges ruled that while Tetrus had broken the law for financial gain, its calls had not caused substantial distress to recipients.

A spokesperson for the ICO said: "This is a disappointing result, particularly when the tribunal recognised that Mr Niebel and his company ... 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 consumer group Which? has been leading a campaign against spam texts and calls. Its executive director, Richard Lloyd, said: "We are disappointed in the outcome of this case and concerned it could undermine future enforcement. Unwanted calls and texts are not just a nuisance, they are making people's lives a misery.

"The Government must change the law to make it easier for regulators to crack down on companies who break the rules, and lower the threshold so regulators can take action without having to prove that calls are causing substantial distress."

The Liberal Democrat MP for Edinburgh West, Mike Crockart, hopes to force the Government to act. He published a Private Member's Bill this week that would update the law to give the ICO more powers to tackle unwanted calls and texts. The Bill also attempts to reform the way in which personal data is traded.

Mr Crockart said: "It is crucial that we clarify the current legislation on consent. Consumers need to be aware where and when they allow companies to contact them for marketing purposes. All too often, companies use complicated language so people do not know what they have consented to."

He said his proposed law would simplify the language used in consent boxes and require companies making calls to prove from where consent has been obtained.

"Regulators must also be able to deter nuisance calls through effective enforcement and realistic regulations," he added. "As was shown through the Tetrus case, current legislation makes it too difficult for regulators. We need to shift the balance of proof on to those unscrupulous companies causing misery to families."

The Bill will get its second reading next Friday and Which? is supporting it. Mr Lloyd said: "We want to strengthen the law on how our data is used, including a time limit on marketing consent. We also want to see regulators given more powers."

The call centre run by 'big nev' wilshire was fined £225,000 following more than 2,700 complaints

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