In November 2017, we received a complaint from an individual who received a marketing email from the Kilkenny Group. The email, which was personally addressed to him, promoted a pre- Christmas sale and informed him that there was up to 50% off and that everything was reduced. The complainant informed us that he did not believe that he had opted into receiving marketing emails.

During our investigation, it emerged that a previous marketing email had been sent to the same complainant one year earlier, in November 2016, inviting him to a corporate event in the company’s Cork store. The complainant subsequently advised us that he recalled replying to that email, asking that his email address be deleted. In September 2012, arising from our investigation of a complaint about unsolicited marketing text messages sent by the Kilkenny Group to a different complainant, we had issued a warning to the company. In light of that, the DPC decided to prosecute the company in respect of the 2017 complaint.

The matter came before Tralee District Court on 15 October 2018. The defendant faced a total of four charges. Two related to alleged contraventions of Regulation 13(1) of S.I. No. 336 of 2011 for the sending of unsolicited marketing emails to the complainant in November 2016 and November 2017 without his consent. Two further charges related to alleged contraventions of Regulation 13(12) (c) of S .I . No . 336 of 2011. This regulation provides that a person shall not send electronic marketing mail that does not have a valid address to which the recipient may send a request that such a communication shall cease. As guilty pleas were not entered to any of the charges, the matter went to a full hearing involving three defence witnesses and two prosecution witnesses, including the complainant. At the end of the proceedings, the court found the facts were proven in relation to two contraventions of Regulation 13(1) in relation to the sending of two marketing emails without consent. On the understanding that the defendant would discharge the prosecution costs of €1,850, the court applied Section 1(1) of the Probation of Offenders Act in respect of both charges instead of a conviction and fine. The court dismissed the two charges in respect of Regulation 13(12)(c).