The High Court has refused to stop about 60 prosecutions against Realm Communications Limited over alleged unsolicited electronic marketing communications.
The summonses were pending before the District Court and alleged breaches of rules prohibiting direct-marketing electronic mail to individuals who had not consented to receive it. A conviction could attract a fine of up to €3,000 for each offence under the legislation then in force.
Realm obtained leave for judicial review in April 2008 and the prosecutions were stayed while its challenge was determined. The company argued that the Data Protection Commissioner had acted unlawfully by commencing prosecutions without first attempting to arrange an amicable resolution of the complaints.
Realm relied on section 10 of the Data Protection Act 1988, as amended, which required the Commissioner in certain complaint procedures to investigate and, where appropriate, seek an amicable resolution. It argued that this amounted to a legal precondition which had to be satisfied before criminal enforcement could begin.
Mr Justice McCarthy rejected that interpretation. He held that the statutory obligation relating to amicable resolution formed part of the Commissioner’s complaint-handling procedure but did not restrict the separate power to prosecute offences.
The judge noted that even if an amicable resolution were achieved between a complainant and the company, the alleged breach itself would still exist. Criminal proceedings concern enforcement of the law by the State or public authority and are not dependent on whether the individual complainant has obtained a satisfactory private outcome.
The court also found nothing in the relevant EU directive requiring mediation before enforcement. Reading the Irish legislation according to its ordinary meaning, McCarthy J said there was no basis for adding such a condition to the Commissioner’s prosecution power.
The judicial review relief was refused. The ruling did not determine whether Realm had committed any of the alleged offences; it removed the legal objection which had been raised to the prosecutions continuing.