Firm seeks to stop prosecution over texting

A COMPANY has brought a High Court action against the Data Protection Commissioner to prevent its prosecution over the alleged sending of unsolicited text messages as direct marketing for commercial purposes.

The central ground of the challenge by Realm Communications, against which 14 complaints have been made, is that the commissioner was obliged to seek an amicable resolution of the complaints between Realm and the complainants before proceeding to prosecution.

The commissioner has rejected that claim. Paul Sreenan SC, for the commissioner, argued yesterday that sending unsolicited messages was a self-standing criminal offence subject to prosecution.

The sending of unsolicited text messages or "spam" created serious hazards for the privacy of people and the operation of communications networks, Mr Sreenan said. The relevant regulations to prevent this were introduced in 2003 and provided for no requirement for mediation or to seek an amicable resolution before proceeding to prosecution, he argued.

It was unclear what Realm meant by mediation or "amicable resolution" and what it was contending in this case was "simply unworkable".

The hearing of the action before Mr Justice Patrick McCarthy in the Commercial Court began yesterday and is expected to conclude today.

The case was initiated by Realm in the High Court, but was admitted to the Commercial Court on the application of the commissioner who said he was concerned to have a speedy court interpretation of the relevant laws as other cases were pending. Sixteen criminal prosecutions over the sending of unsolicited text messages stand adjourned pending the outcome of the proceedings by Realm, while about 200 other applications are also affected.

Realm initiated its case in April last and also secured an interim High Court injunction restraining its prosecution by the commissioner before Dublin District Court pending the outcome of the action. Realm, with offices at Castle Drive, Citywest Business Park, Dublin, is facing prosecution on some 60 summonses arising from complaints against it by 14 people concerning unsolicited texts. Fines of up to €3,000 for each message can be imposed in the event of conviction.

Realm claims it co-operated fully with the commissioner after regulations governing text messaging services came into force in November 2003.

It claims it was subject last year to a "totally unnecessary dawn raid" by staff from the commissioner's office in which a significant amount of records and material were removed.

In submissions yesterday for Realm, Colm Ó hOisín SC, said the case also raised issues in relation to the length of time in which a person's details may be maintained on a database if they have subscribed to a company's services.

The commissioner had taken the view such details may only be kept for 12 months, but there was no statutory basis for that, he said.

There was also an issue as to how to treat databases that were operating before the relevant regulations came into effect, he said.