Important - the regulations cover emails to an individual subscriber - this is where you have a contract with the email provider/ISP for the email services as yourself as an individual (not simply a contract with your employer or a university, has to be a communications provider).
It also has to be a marketing email. There are many other types of emails, such as those confirming email address for an opt-in, or even a survey, which are not covered.
Also, you must not have opted in for the emails from the sender or requested emails from the sender (opting in for someone else is a different matter, and I believe does not apply).
Also, this is UK only. Yes, the rules apply EU wide, but chasing someone in another country is harder and rules may be subtly different. In general the spam I am targeting has clearly stated UK company details in the marketing email.
The usage of the email address, e.g. is it a work email address, is not relevant. What matters is who exactly has a contract with the ISP for the email, and if they contract as an individual.
I am not a lawyer, and welcome constructive comments, but you are free to use this text if you wish...
Basically, if you can be sure they got this, and they do not sort a settlement or agreement within 14 days, you can move on to a county court claim. I believe this meets all of the requirements for a pre-action notice. In general, I only go on to a county court claim if they have clearly identifiable UK company details and have replied to my notice email thereby confirming receipt. Occasionally I'll post this notice and then pursue action.
[This is edited after some comments, so is the current version. Sorry if that makes some comments seem odd. Thanks for the feedback everyone]
This is not a scam - you have acted unlawfully and I am entitled to claim damages - so do not ignore this email assuming it is just a scam. I have previously made successful claims via the courts. NOTICE BEFORE ACTION You have transmitted, or instigated the transmission of, an unsolicited communication for the purpose of direct marketing by means of electronic mail to an individual subscriber contrary to section 22 of The Privacy and Electronic Communications (EC Directive) Regulations 2003. Feel free to look up those regulations on www.legislation.gov.uk I, as the recipient and individual subscriber, have never given you consent to send me marketing emails and I have never provided my email address to you as part of a negotiations or sale by you to me in the past. For the avoidance of doubt - this is not a Data Protection Act issue, or one where you have the option of relying on an "unsubscribe" link - sending just one email, as you have, is a breach of the regulations. Section 30 of the regulations permits me to take civil action to recover damages suffered as a result of your breach of the regulations. It is difficult to assess damages exactly but your email has used resources on my computers and my Internet connection, wasted some of my time, caused distress and annoyance which has interrupted my chain of thought and concentration, and so disrupted work I am doing. Looking in to similar cases for such damages it is clear that claims range from £270 to £750. In this instance I feel that £200 would constitute a reasonable level of damages for the hassle you have caused me by your breach of the regulations. In accordance with section 8.2(1) of the Pre-Action Conduct Directions of the Civil Procedure Rules, I would like you to consider Alternative Dispute Resolution to this matter by means of discussion and negotiation. I therefore invite your comments and any offer of settlement or other negotiation. You have 14 days to reply. Ignoring this notice may lead to proceedings starting without further notice, and will increase your liability with the addition of costs. Your attention is drawn paragraph 4 of the Pre-Action Conduct Directions located on www.justice.gov.uk Should this matter go to court I will rely on the email you have sent and associated headers, whois data and other resources identifying the sender. If you believe you have evidence that shows I did give *you* consent to the sending of that email I ask that you forward this to me by reply. I look forward to your prompt reply.
-- Adrian Kennard, [my address as required by pre-action protocol]
I think it's too wordy and trying to deal pre-emptively with all kinds of potential excuses. Since you don't know which excuses they might make, I would reserve some canned responses for dealing with those later.
ReplyDeleteHere is my cut down version:
NOTICE BEFORE ACTION
You have transmitted, or instigated the transmission of, an unsolicited
communication for the purpose of direct marketing by means of electronic
mail to an individual subscriber contrary to section 22 of The Privacy
and Electronic Communications (EC Directive) Regulations 2003.
I, as the recipient and individual subscriber, have never given you
consent to send me marketing emails and I have never provided my email
address to you as part of a negotiations or sale by you to me in the past.
For the avoidance of doubt this is not an issue where you have the option of relying on an "unsubscribe" link - sending just one unsolicited email, as you have, is a breach of the regulations.
Section 30 of the regulations permits me to take civil action to recover
damages suffered as a result of your breach of the regulations. Your email has used resources on my computers and my Internet connection, wasted some of my time, caused distress and annoyance which has interrupted my chain of thought and concentration, and so disrupted work I am doing.
Looking in to similar cases for such damages it is clear that claims range from £270 to £750. In this instance I feel that £200 would constitute a reasonable level of damages for the hassle you have caused me by your breach of the regulations.
In accordance with section 8.2(1) of the Pre-Action Conduct Directions
of the Civil Procedure Rules, I would like you to consider Alternative
Dispute Resolution to this matter by means of discussion and
negotiation. I therefore invite your comments and to make any offer of
settlement or other negotiation.
However, if I do not receive a reply within 14 days I reserve my right
to issue a claim on the small claims track of the county court without
further notice.
I look forward to your prompt reply."
You've missed the section in Annex A 2.3 at http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#A where you must refer them directly to paragraph 4 of the practice direction regarding failing to comply with the pre-action notice, unless you think they are legally represented.
ReplyDeleteYou also also refer to other cases with damages. Do you have links to those? Would be interested to see what you found.
Ooh, I am sure I can reference that - missed that one! All I did was google, but references sounds like a good idea.
DeleteHow should emails with the following in them be dealt with:
ReplyDelete"This Email is sent to you by a third party email marketing company not the advertiser"
My view is the advertiser is the one responsible still, is that correct? The third party is a US Company, but the advertiser is a UK Limited company.
My understanding is that sending, and instigating the sending, are both equally unlawful. You county court claim them both on the same claim and let the judge sort it out :-)
DeleteI guess you can equally pick and choose your defendants and ignore the US company?
DeleteI just had the same excuse back from one spammer I sent a letter before action. They stated "A company called [redacted] based in South Africa sent you this communication to generate leads for us. We employed them as a 3rd party advertiser under the clear understanding that they are marketing to a list of individuals who have legitimately subscribed to these offers"
DeleteI am wondering if the company being advertised could use this as a defence, i.e. that they used reasonable care in instructing the third party lead generator.
I'd still sue them, as they still employed them to send the email - and it's up to them to sue their contractor for not following their instructions.
DeleteI'm tempted to give this a try but I'm curious as to how successful you think it will be for a larger organisation. Basically a representative large online recruitment site (usually found hiding under the bed) has contacted me trying to encourage me to change jobs. I don't have (and never have had) an account on this site, and have never corresponded with them.
ReplyDeleteDoes this seem like a valid scenario for this?
If it counts as a marketing email
DeleteHi Adrian,
ReplyDeleteI've been plagued by SMS spam of late. They always send from different numbers, but often include a URL. I've forwarded countless of these messages to my phone provider, and the ICO but still they keep coming.
One of them (that has sent me at least 4 SMS messages) include URL which has a 'Legal Solutions Company' as the owner of the domain.
Since the same legislation covers SMS and E-Mail, I've ripped off your email, and sent a notice before action to the owner of the domain.
I can't see them even taking the time to respond, however I'm willing to take it to court.
I thought you may be interested to see how this goes.
So here is my story so far.
DeleteI sent a notice before action to the owner of the domain sending me spam (My Bank Refund).
They replied stating they use an external company to do the spamming for them, but will request details of the opt-in information for me.
They then replied with some information, and stated if I have any further problems, take it up with the company that are sending the spam.
The opt-in information I was supplied contained:
- My telephone number
- A date (15/10/2012)
- An IP Address (77.97.159.4) - VM. I've never been a VM customer
- A website - www.pulse-insurance.co.uk
Now Pulse Insurance have a partner who provide travel insurance to people with pre existing medical conditions, and my wife has a pre-existing medical condition and was previously a VM customer. However not on that date. We moved in together in January 2011 to a premises that did not have VM as an ISP. Additionally we had no trips planned around that date.
Usually I am very careful about making sure the "don't spam me" options is set, and never to allow the "let us pass your details on to other companies" options, but I do concede that it may be possible that I have done that. However not on that date, and not on that ISP.
The company that replied with the information is a company called Clarity Leeds, who have had an ASA adjudication against them for SMS spam, however it looks like they just got a slap on the wrist. Note the "those numbers don't belong to us..." statement from them.
http://asa.org.uk/Rulings/Adjudications/2014/9/Clarity-Leeds-Ltd/SHP_ADJ_269736.aspx#.VRl285tVjvU
My problem now is where do I take it from here? From my understanding of the DPA the following breaches may have occurred:
* My data has been sold to a 3rd party without my consent (I admit that I may have given consent... but I doubt it)
* My data has been sold to a 3rd party without me being informed (definitely the case. How would I prove I've never been informed? I guess the onus is on the offender?)
* I am being sent marketing emails unrelated to the purpose the data was originally collected for. PPI Refunds are a long jump from travel insurance.
My problem is where do I go from here? Who is actually at fault? There are 3 companies who are partaking in shady marketing practices, and to me it seems a fair bit of it is borderline illegal.
Note my ultimate intention is not to receive junk messages. Clarity Leeds claim to have taken me off their database, but my question is where did they really get my data from? Who else has been sold it?
I guess Clarity Leeds are the next step, but are My Bank Refund responsible for marketing communications sent out on their behalf? I would have thought so.
Have you got any advice about where to go from here?
Regards,
Dave
Not legal advice, but I'd notice before action all there, then sure all there in one action.
Delete