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OPTA imposes fine on sender of football SMS spam

Today the commission of OPTA, the Independent Post and Telecommunications Authority, imposed a fine amounting to a total of EUR 10,000 on a natural person for sending unsolicited text messages, otherwise known as SMS spam. The SMS service was titled “sms-service EREDIVISIE” and contained football scores. In order for users to unsubscribe they had been forced to call a charged number and been kept on hold to no avail. This way the person earned money from sending the SMS spam.

Investigation
After having received complaints through www.spamklacht.nl, a spam report website, OPTA placed the SMS spam sender under scrutiny. Furthermore, in December of 2007 a primetime news program dedicated a story to this particular case. With regard to the allegations OPTA investigators searched through the perpetrator’s residence on 12 March 2008 and confiscated a memory stick that contained a list of telephone numbers, including those of the people who had registered their complaints on the website, as well as a laptop containing incriminating evidence against him. Additionally, his social security number and bank account proved that the charged service number was allocated to him. All this brought OPTA’s commission to the conclusion that this person had evidently infringed the spam injunction.

Fine
OPTA’s commission has accused the natural person in question of anonymously delivering charged text messages to users without their consent and without offering a legitimate way to unsubscribe to this service. Upon determining the sum of the fine the commission has considered the following facts:
- The material damage which constitutes telephone charges paid by consumers amounting to a total of EUR 2,624.
- The non-material damage to consumers i.e. aggravation and loss of trust in electronic communication services as well as damage to the reputations of mobile telecom operators and SMS service providers.
- The significant amount of complaints OPTA received within a short period of time, namely 66 in two days.
- The 12,400 text messages delivered is not considered to be extremely high.
- The infringement lasted one day, which is a relatively short period of time.
The natural person is entitled to submit a notice of objection against OPTA’s decision or appeal to the district court.