Data watchdog fines spam firm for sending out 36 million texts

The Spanish Data Protection Agency (AEPD) has fined Ocio Factory Time 200,000 euros for carrying out a mass publicity campaign for a television game show. The company sent out nearly 36 million text messages to cellphones, in most cases without the consent of the recipients, plugging a the Antena 3 show Rico al instante (or, Rich in an instant).

This deluge of spam caused a rapid reaction on the part of its unwilling targets. Between January 4 and February 7, 2011, the AEPD received 333 written complaints over the messages to promote Rico al instante, a game show that offers participants the chance to win 200,000 euros by sending a text.

The missives were tempting and suggestively worded: "Do you want to win 200,000 euros for the same price as a coffee? Come on the show! Just by replying RICO to 25354 you can play live (1.42 euros per text)."

Rico al instante was broadcast on Antena 3 last January. The network entrusted production of the show to Zed Worldwide, which later became Ocio Factory Time. During the publicity campaign the company sent out 35,976,137 text messages and in November the AEPD started proceedings against it for potentially breaking the law. Zed Worldwide claimed that it had not broken any regulations and that the recipients could object to the messages.

The company argues that 99.8 percent of the messages did include the option to block further publicity and in only in the case of 8,170 texts — or 0.0022 percent — was this option omitted.

"In view of the scale of the campaign," the company said, the percentage of supposed infractions is "sufficiently low" to indicates that the law was adhered to.

But the AEPD was unmoved. In the watchdog's view, the producer committed two serious infractions: firstly, due to the eventual receipt of more complaints, for sending 451 messages without consent, the firm was fined 50,000 euros. Second, the 8,170 texts that failed to contain a "simple and free" manner for users to reject such publicity the AEPD imposed a fine of 150,000 euros.

The sanction could have been higher, with the original fine set at 230,000 euros. Miguel Cobacho, a partner at the law firm salirdeinternet.com, said that this was one of the highest fines ever imposed in Spain for this type of abusive practice. Cobacho added that it will serve to help put a stop to mass spam messaging as "many businesses do not know what sort of fine they may receive," while noting that the AEPD once fined a company 30,000 euros for sending four emails and has now slapped Ocio Factory Time with a 50,000-euro penalty for sending almost 36 million texts.

The company can appeal the ruling, but in the meantime the producer of Rico al instante finds itself considerably poorer — all in the blink of a text message.