This is one on which I am really interested in feedback. I hope people appreciate that some of my blogs I do not even think I have all of the answers and am keen to learn what others think...
The background is simple, I have sued a spammer under The Privacy and Electronic Communications (EC Directive) Regulations 2003, as you do. I sued for £200, as per my normal notice of action emails. This is an interesting one as we are pretty sure the guy called my email provider (not A&A) to suggest someone was using his domain for a scam, and claiming that my email was a known scam, all over the Internet! I think I blogged on it. But I cannot be 100% sure it was him, as I emailed more than one spammer that day, and he refused to identify himself on the call. This is one to which I did get an email reply though, and oddly he stated two things (a) that he bought a mailing list (which confirms that I did not give him permission to send the email, and so not a good thing to have admitted), and (b) that he has insurance for this (odd, and suggests he knows that what he is doing may incur charges for which he should be insured!).
Anyway, simple matter, county court claim, and out of the blue he responds by email to me as a without prejudice negotiation.
He offered to settle, with no admission of guilt, by paying £100 to NSPCC.
I replied pointing out that if I did not feel I had suffered damages then the claim would have been invalid anyway. This is not punitive as that is not allowed for county court claims or the PECR. I am happy to negotiate the level of damages as most are "intangible" losses to me, and would accept £100 (plus my £25 court fees) as settlement, but that paying to a charity makes no sense to settle my damages claim.
He then replies, with a screen shot, to confirm he has paid £125 to NSPCC. I did reply explaining that doing such was silly. He says he will defend the claim. Yay!
Now this is what I do not get. I have seen this a couple of times before - some claim or some debt - I think we have even had people A&A are chasing for a debt say this, that someone would pay to a charity rather than to "me" as a means to "settle" the claim!
I really do not understand this. What am I missing here?
How could paying money to a third party (charity or whatever) be a sensible "offer" in any way to settle a claim for damages?
Update: 16th Jan
He has filed a defence, which predictably says he bought a list that was meant to be opt in, etc... Nothing surprising there, but what is odd is that he says he offered to pay £100 to NSPCC, that I refused and said I wanted £125 paid to me (as I did), that we did not agree, and that he has now paid £125 to NSPCC. I was going to use that, and thought I could not as without prejudice negotiations, so he has made my life a lot easier now!
What is also odd is that he has said no to a mediation call and written "I HAVE MADE AN OFFER". That seems odd, as you would expect that to mean a mediation call is a good idea.
I have written to the court stating that I accept the amount offered and that I would simply like an order to pay *me* the amount offered (£100) to settle the claim. We'll see what happens.
The defence is a tad funny as it states "I believe that [defendant] have shown due diligence and a commitment to abide by the rules of Electronic communications in order try and to grow their business. Therefore I feel Additional Resources Ltd should be protected from this claim by section22 (3) of The privacy and Electronic Communications (EC Directive) Regulation 2003", well 22(3) is nothing to do with "due diligence", it starts "that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient" which simply is not the case and not something he has claimed, so 22(3) simply does not apply.
This should be fun if we go to court. I have the facts clear that I am an individual subscriber (I have an invoice for the email in my name). I have the admission that he bought in my details rather than got than as part of a sale/negotiation (so 22(3) does not apply). He is clearly in breach, leaving only the amount as the problem area, and for that I have the figure he has placed on this (£100) which I am happy to accept.
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Tell them you'll settle and then pay it to a charity yourself?
ReplyDeleteMy thought on this is that in agreeing to let him pay money to a charity, you are admitting that you haven't incurred real costs and are just trying to penalize him because you can. And maybe he can think he can use this fact at a later date.
ReplyDeleteSimple enough - point out that you are not the NSPCC and the invoice still stands. Might be worth getting a third party to purchase something from him and then, when he requests payment, make a similar tax-deductible donation to a random charity and see what his reaction is.
ReplyDeleteI believe some people do this because they work on the basis "Well, I don't think I'll win saying the money isn't payable, but I don't want 'them' getting the money - so I'll send it elsewhere: they won't be heartless enough to try and get their money out of the charity..."
I would guess they have suggested this as charitable donations are tax deductible so they can just write it off, effectively costing them nothing
ReplyDeleteI imagine that this is for the simple reason that it can be filed under "charitable donations" and not "legal expenses" which looks worse on the books.
ReplyDeleteYou could ask him. I believe his arrogance is such that he feels he's the wronged party, and can't stomach giving you the cash. The charity angle is just an attempt to guilt you into accepting his offer, while at the same time redeeming a bit of his personal integrity.
ReplyDelete+1 KS
ReplyDeleteWould be interesting to see where this is coming up as a scam. I've been hitting a few companies since xmas, and I've got a couple of live ones now who've responded, so will be dropping them court summonses very soon!
ReplyDeleteOne possible advantage is that this leaves no evidence of an admission of liability. If he was ever in court in future and you decided to give evidence against him, what have you got? A payment to charity and he can deny it was anything to do with you.
ReplyDeleteI think a lot of people view court payments as a punishment to the defendant and a prize to the plaintiff, rather than a means of putting right a genuine loss to the plaintiff.
ReplyDeleteBy offering to pay the money to charity he's saying "Ok I did something naughty and I've taken my punishment," hoping you'll go away. If you accept he gets to feel good about giving to charity, and avoids feeling like you're getting a reward for chasing after him. If you turn down the offer then his idea that you're a nasty person is reinforced, and gets to feel less guilty about what he did in the first place.
What you're encountering is people who genuinely don't understand that spamming is a bad thing (else surely they'd not do it). When you call them out on it they'll mentally bend over backwards to avoid accepting their behaviour is wrong.
> he has insurance for this
ReplyDeleteHe may well just have a standard business public liability policy that covers claims resulting from his inadvertent negligence. Of course if he knew what he was doing was illegal, I'm sure his insurer would have something to say about his wilful negligence!
> someone would pay to a charity rather than to "me" as a means to "settle" the claim
It might make sense if it is a punitive fine - they don't want you to benefit from causing them trouble, but also want to be seen to be taking the punishment, so hand some cash over to a charity.
It doesn't make sense when paying damages though - the payment is supposed to cover your losses, and sending money to a charity does not do this. They are of course free to give money to a charity, but that doesn't absolve them of their debt to you. :)
I've sent notices to a few companies this year - no replies yet (although they haven't used up their 14 days yet). I guess I have to decide whether to proceed to court if there's no response.
I've got a similar dilemma. I've had one reply back saying that they weren't the sender, but were the ultimate beneficiary from the email (which was sent by an affiliate). Somewhat puzzled at how to proceed with that one.
DeleteIf they instructed the affiliate to send the marketing communications, it seems to me that they "instigated the transmission" and are in breach of regulation 22 paragraph (2) of the PECR.
DeleteIf they can plausibly claim that the affiliate sent the communication of their own volition (e.g. me spamming the world about Alex Threlfall Industries), they are probably in the clear; you'll have to go after the affiliate instead, since they did the sending. (Note that nothing in the PECR suggests that the marketing communications need to benefit the sender: regulation 22 paragraph (2) prohibits transmitting "unsolicited communications for the purposes of direct marketing by means of electronic mail" unless the recipient consents.)
I think Simon is being too generous. I have just finished (and can recommend) Spam Nation by Brian Krebs. In it he describes how the spammers would refund at any hint of trouble to stay below Visa/Mastercard's radar. I think occasional payments like this are just seen as a "cost of doing business" and preferable to appearing in court/ creating an evidence trail
ReplyDelete