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Neutral Citation Number:	2014 UKUT 255 AAC
Reported Number:
File Number:	GIA 177 2014
Appellant:	The Information Commissioner
Respondent:	Niebel
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	11/06/2014
Date Added:	18/06/2014
Main Category:	Information rights
Main Subcategory:	Data protection
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 1. Data Protection – monetary penalty notice – whether text messages caused “substantial damage” or “substantial distress” The Information Commissioner (IC) served Mr Niebel with a monetary penalty notice (MPN) for £300,000 on the basis that his jointly owned company had sent hundreds of thousands of unlawful spam texts to the public. The IC explained in the MPN that, while the distress in each individual case may not always have been substantial, the cumulative distress on those affected had been. Before the First-tier Tribunal (F-tT) the IC relied on only 286 messages as the basis for the contravention. The F-tT set aside the MPN and the IC appealed that decision. The issue before the Upper Tribunal (UT) was whether there had been a contravention of a kind likely to cause “substantial damage” or “substantial distress” under section 55A(1)(b) of the Data Protection Act 1998 either individually or cumulatively. Held, dismissing the appeal, that: 1. in deciding whether section 55A(1)(b) of the 1998 Act had been contravened, the F-tT was entitled to conclude that a contravention involving 286 text messages was of a very different kind from one involving hundreds of thousands of text messages. It was not possible to import the very much larger number in order to determine the nature of a contravention involving a much smaller one (paragraphs 28 to 41); 2. the F-tT was entitled to conclude on the evidence before it that the contravention was not of a kind likely to cause “substantial damage” (paragraphs 42 to 54); 3. the F-tT was also entitled to conclude on the evidence before it that the contravention was not of a kind likely to cause “substantial distress”, and to disagree with the IC’s guidance as to the meaning of “distress” (paragraphs 55 to 74).
Decision(s) to Download:	[2015] AACR 1.ws.doc