Company 4’s a Fortune was found to have sent unsolicited messages to members of the public in March 2004. Since November 2003 under SI 535 of 2003 [European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003] the sending of unsolicited commercial mail from Ireland has in some instances been an offence.

The company – which operates what it calls an 'online casino-like cash game' made a total of 165,000 calls, all to O2 customers. The calls were mostly by auto-diallers that hung up after two rings. When recipients noticed a missed call on their phones, some of them called back to the landline number displayed. They were then put through to a recorded message which encouraged them to call a premium rate number and play a game to win money. The Data Protection Commissioner (DPC) argued that these callbacks constituted a message and as such came under the legislation governing spam.

4’s a Fortune entered a guilty plea in July. The DPC said the company had been co-operative and there had been no recent complaints against it. The company was fined €300 for each of four complaints from mobile phone users who had received the missed call, plus costs of €1,000.

The DPC says is currently investigating close to 100 cases in total, some of them involving e-mail spam. However, most unsolicited email originates abroad, making it extremely difficult to gather evidence to prosecute a case.

Irish rules, which came into force in November 2003, set out restrictions on unsolicited direct marketing by phone, fax, automated calling systems, email, SMS and MMS. Cold calling – the making of unsolicited calls without the prior consent of the recipient or the recipient being an existing customer – is forbidden.

The judge in the case said she was surprised that no custodial sentence was available in the Regulations – although she added that it would not have been appropriate in the circumstances of this case.