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OFT acts to stop misleading data protection ads

PN 165/03    9 December 2003

A High Court has granted a final injunction against Christopher Yewdall restraining him from being involved in misleading data protection advertising, following OFT action.

The OFT's case was that Mr Yewdall was involved with misleading advertisements relating to notification with the Information Commissioner under the Data Protection Act 1998 using various names: Data Protection Agency, Data Protection Agency Registrations, Data Protection Agency Services, National Registrations, Data Protection Registration and Data Protection Registration Services. The OFT received thousands of complaints from businesses regarding these adverts, which used return addresses all over the country. Mr Yewdall had previously given written assurances to the OFT that he would not be involved with such advertising.

The OFT considers that such adverts are misleading because they gave the impression that they were from an official body, that the businesses receiving them were under a legal obligation to register with the sender and that notification costs £95. They also failed to properly explain which persons are exempt from notification under the Data Protection Act 1998.

While most businesses processing personal data are required by law to notify the Information Commissioner, many small businesses that process such data for limited purposes are exempt from notification.  Businesses that do need to do so can notify the Information Commissioner directly, for a fee of only £35.

The injunction prevents Mr Yewdall from being involved in any way with certain types of advertising about data protection notification services. It also means he cannot accept payments received in response to such advertising without first contacting the payee and providing them with specified information about the exact nature of the services being offered in the advertisements and thereafter obtaining their written consent to retain the payment and process the notification.  Mr Yewdall consented to the final injunction being granted without making any admissions about the OFT's case.

Welcoming the order, John Vickers, OFT Chairman, said:  'The OFT has received thousands of complaints about this sort of misleading advertising and we will continue to take strong action against individuals who mislead businesses in this manner.

'Businesses should contact the Information Commissioner if in any doubt about their obligations to notify under data protection legislation.'

NOTES

1. The final injunction was granted on Thursday 4 December 2003 in the High Court.

2. Where a trader breaches a court order, the OFT can invite the court to punish him or her for contempt.

3. An interim injunction was granted on Thursday 7 August 2003 as a temporary measure until the OFT's application for a final injunction was determined.

4. Mr Yewdall signed assurances in August 2002. See press release 72/02. See OFT press releases 35/02, 39/02, 77/02 and 71/03 for further information on previous OFT action against misleading advertising for data protection notification services.

5. The Control of Misleading Advertisements Regulations (CMARs) 1988 came into force on 20 June 1988 implementing an EC Directive on misleading advertising. The role of the OFT under the Regulations is to support and reinforce existing controls, not to replace them. The Regulations give the OFT the power to step in if the public interest requires that advertisements complained of should be stopped by means of a court injunction.

6. The OFT can act only when a complaint has been received. To come within its scope an advertisement must be misleading (i.e. it must deceive or be likely to deceive the recipient and affect their economic behaviour, or for those reasons, harm the interests of a competitor), and be published, in connection with a trade, business, craft or profession, in order to promote the supply or transfer of goods or services, immovable property, rights or obligations. The OFT can take action against anyone appearing to be concerned or likely to be concerned with the publication of a misleading advertisement.

7. Details of whether or not you are required to notify under the Data Protection Act 1998 are available on the Information Commissioner's website or you may telephone their notification helpline on 01625 545740.

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