Even though a UK business, he had not provided the details of his legal entity on the web site or emails (as required by the Companies Act 2006). This is a pain as it makes suing him somewhat harder. He also uses a correspondance address in London, not a real office. I was expecting to hear nothing and hence be able to do nothing. To my surprise he did reply. Even so, I have reported this to Trading Standards, and they are in fact investigating. It seems that they are a partnership, and the best I got was an initial and surname for each of the two partners and no other address, which, sadly, seems to comply with the rules. The difficulty with actually suing and enforcing a judgement is one reason I ended up agreeing a settlement. Fortunately most spam like this is from UK limited companies providing a proper company number in the initial email.
Another interesting issue is that he had emailed 7 times before. He claims not to have received any of the email replies I had sent, and suggests that my IP is on some sort of black list. Needless to say no emails bounced. He initially offered £25, and I said fine, and £25 for each of the other 7 makes £200. But he wanted to offer £25 for all emails. I pointed out my letter before action clearly related to just one email and that is all I would be taking to court this time. Depending on the outcome I could take action for the other 7 at a later date. Maybe, in hindsight, I should have got settlement of the £25 for this one email first and then gone after him for the other 7.
At every stage he disputes any liability, and keeps saying that he complies with all regulations. I have tried pointing out that this is factually wrong. There is no doubt he sent an unsolicited marketing email to an individual subscriber, which means he did not comply - matter of fact. Interestingly he claims that "subject to certain requirements they do permit us to legally email what we reasonably understand to be business email addresses". When I asked him to back that up, he referenced an ICO guideline which did not actually say that at all. It seems to me he genuinely thought that he was within the regulations if he believed the email address was not an individual subscriber, and if he removed the email address when told otherwise. Reading the regulations I am very much of the opinion that this is not the case, and that even one such email, regardless of intent, is a breach of the regulations.
He also said that they are trying to get clarification from the ICO on the "ambiguity" over individual subscribers and corporate subscribers. I guess, if in the business of email marketing he might like to clarify that. I don't think it is ambiguous, just something the sender cannot know. Even so he raises one interesting point, which I was a tad unclear of. Is the subscriber in "individual subscriber" the person that contacts for the "email service", or the person that contracts for the "line" over which the email is delivered? However, I think I have worked it out now...
The PECR states: “subscriber” means a person who is a party to a contract with a provider of public electronic communications services for the supply of such services; “electronic communications service” has the meaning given by section 32 of the Communications Act 2003;
Now, looking at the section 32 of the comms act: “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.
Now, an "electronic communications network" is a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description
A signal is (a) anything comprising speech, music, sounds, visual images or communications or data of any description; and (b) signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus.
An email service does indeed use such a network, and I think signal covers an email. So it seems to me that the subscriber in relation to an unsolicited marketing email is the subscriber to the email service.
An email service does indeed use such a network, and I think signal covers an email. So it seems to me that the subscriber in relation to an unsolicited marketing email is the subscriber to the email service.
Anyway, once again, this means no case in front of an actual judge. We'll get there eventually.
Update: Interesting point from the comments, I missed the "public" part in the above, which is: “public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;
What is interesting is the "use" part. If you run a mail server for a domain, you are allowing members of the public to "use" that service by allowing members of the public to send you email. It does not say you have to allow members of the public to "subscribe" to the service. It uses the word "use". So to my mind, pretty much any mail server is a "public" electronic communications service.
Update: Interesting point from the comments, I missed the "public" part in the above, which is: “public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;
What is interesting is the "use" part. If you run a mail server for a domain, you are allowing members of the public to "use" that service by allowing members of the public to send you email. It does not say you have to allow members of the public to "subscribe" to the service. It uses the word "use". So to my mind, pretty much any mail server is a "public" electronic communications service.
I do not purchase an "email service" - I have a server, pay for my domain and run my own mail server. It sounds like this makes whether or not I'm an "individual subscriber" rather dubious. My mail service for my _personal_ email address is run by an individual (me), not by my limited company, but I'm not sure whether that makes me an "individual subscriber" or not...
ReplyDeleteSadly this is actually one of the gaping holes in the regulations. In such case you would have no contract with a provider of public electronic communications services for the supply of such services, so you are not in fact covered, which is just stupid. Even if you paid a mate £1/year to run your mail server, unless it is used to provide (or at least offer, I guess) such services to the public, it would not count.
DeleteActually, “public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;
DeleteNow, surely, that "service" is available for use by members of the public, because members of the public can email you, "using" that service. You may not offer the services such that members of the public can subscriber to the service or even have an email, but you do let members of the public "use" the service. You just need someone to be a "provider", so maybe getting a mate to charge you £1/year to "run your mail server" for you would get you within the regulations.
And then we have the likes of gmail - no money changes hands. Can gmail users be considered "individual subscribers" since they don't have a contract with a peppercorn payment? (although they do have a contract of sorts, in the form of Google's T&Cs)
DeleteWhy do you have to pay to be classed as a subscriber? it just means "arrange to receive something"
DeleteThe paying is just to make crystal clear that a contract exists, which you would need in order to be a "subscriber". Yes, a contract does not need money, but a small amount of money does clinch it.
DeleteI never did understand peppercorn payments. I thought the contract law was basically requiring that two parties were exchanging things of equal value (which makes some sense) - a peppercorn payment is clearly not "of equal value" to the thing being received in most cases.
DeleteI am not sure "of equal value" is needed, but even so "running my mail server, which kind of runs itself" is probably something of similar value to £1 a year :-) But in the general case, value is also in the eye of the beholder in many ways. Contracts are all about an enforceable promise both ways (and one way is usually, but not always, money, simply for convenience).
DeleteMy view — for what little it might be worth — is that operating an email server is unlikely to amount to the provision of a public electronic communications service.
ReplyDeleteLeaving aside the "public" bit for now, running a server is not, in my view, a service consisting in the conveyance of anything: providing the broadband line which connects the server to the Internet is the provision of an ECS. The focus of "ECS" is on the notion of transmission. Instead, my feeling is that the operation of an email server is the provision of an information society service.
Although it focussed very heavily on the "webmail" nature of Yahoo!, the Yahoo! case in the court of appeal in Ghent in 2010 is the closest I am aware of to a ruling on this point: DE 20.95.16/08/26. (This might be a hard to find case, and I can email you a copy if you wish.)
Not convinced, but you may know better. The definition is: “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals.
DeleteSurely an email server does just that - it uses the broadband line, and local network (which switches signals and has stored program control and so on), to convert signals (emails).
If not, then in what way would email ever be a (P)ECS, and as such when would unsolicited marketing email ever be a breach?
> a service consisting in ... the conveyance by means of an electronic communications network of signals
DeleteYep - and my view is that an email server "conveys" nothing; it processes some data within it, but it is not a transmission service.
> - it uses the broadband line
And it is this bit which is the ECS, in my view.
> in what way would email ever be a (P)ECS
My view is that it is unlikely that it would ever be a (P)ECS, in terms of the meetings the definitions in the Communications Act 2003.
However, if am right, it does not surprise me: there is, in my view, considerable dissonance in the communications frameworks, with quite a few things which simply do not make sense when followed between different bits of legislation.
Hmmm. The mail server will i n fact *transmit* by means of electrical signals out of the ethernet port on that mail server, as a means to "convey" the signal that is an email, surely. I really am not sure how the hell you are support to read half of this, which is why I concede that you may be right.
DeleteI assume you agree that a simple network switch and cat5 cabling is an ECN though? It meets the definition, and indeed, the definition explicitly allows a single device to be a "network".
DeleteI might be right, I might be wrong — I really don't think it is clear cut.
DeleteI completely see where you are coming from, and it certainly does not help my argument that Ofcom often says, in the broadest terms, that the framework includes the regulation of email. But fitting email into any of the definitions seems a stretch to me.
> as a means to "convey" the signal that is an email
At the moment, I would split it this way:
- the mail server is a box somewhere on a network. It receives stuff sent to it, can process stuff, and can send stuff out; in this sense, it is just like a web server, but dealing with slightly different content and with different protocols for doing so.
- the mail server is connected to to the Internet, by means of an access network (an ECN). The provision of that Internet connectivity is the provision of the electronic communications service: it is this service which carries what leaves the mail server to its destination, where it is delivered to another box which handles it.
In terms of the particular matter at issue, it seems to me that the *intention* behind regulation 22 is clear, and that, if I were in court, and someone was trying to argue the nuances of communications law and interpretation as to why it is not actually unlawful for them to send me unsolicited marketing correspondence, I would aim to bring the discussion back up to the big picture, and encourage the judge to take a sensible, pragmatic decision: leave the nitpicking aside, and focus on what the legislation is there to do.
OK, I think I see where you are going on that, and I can work with that :-) If the mail server and provision of email is not itself the ECS, but the provision of the ECN is an ECS, then the provision of the "Home network" consisting of switch and network cables, used to carry the email from the mail server to the PC, which seems itself to be an ECN, is an ECS... And if the public sending an email get to use that ECS to get the email to the PC, then that makes it public?
Delete> I assume you agree that a simple network switch and cat5 cabling is an ECN though?
DeleteBased on the definition of "ECN", I would say so, yes.
(I have a view as to where you might be going with this, and will be interested to hear it!)
'electronic communications network' means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
I do feel like I am trying to tease a rabbit out of a hat here :-)
DeleteI do wonder why on earth they included the whole "individual subscriber" stuff in the law - it seems to just make the whole thing not very clear cut and difficult to enforce.
Delete> the provision of the "Home network" consisting of switch and network cables, used to carry the email from the mail server to the PC, which seems itself to be an ECN, is an ECS...
DeleteThat seems right to me. The reason I hesitate slightly is that "ECS" is a service "normally provided for remuneration". Most people's home networking kit is not "provided for remuneration", but is operated by themselves for their own personal use. However, as with the definition of "information society service", the bit about remuneration seems to make little sense, although, possibly, it might exclude network A, which is run in my home, as opposed to network B, which is functionally identical but which is provided to me by a third party.
> And if the public sending an email get to use that ECS to get the email to the PC, then that makes it public?
I'm not convinced that the fact that people can send information via the Internet which your machine on your local network makes your local network a "public electronic communications services". (I am also not sure that it is desirable, for most individuals, to want to be regulated as a PECS provider? Do you want an obligation to provide ADR for your home network, for example?)
However, does that need to be the case to make a complaint under PECR Regulation 22?
Your home network is somehow connected to the Internet. Let's ignore the fact that you own an ISP and so have may have all manner of convolution in terms of how you get your connection at home, and use my setup instead. My computer, which connects to a home network, which connects to the Internet via my PECS provider, AAISP. Somewhere on the Internet is my mailserver, to which I can connect, to send and receive email, and to which third parties can address email to me, which the mailserver processes and puts into an account, ready for my collection.
Leaving aside the status of my home network, I subscribe to a public electronic communications service, by virtue of paying AAISP for Internet connectivity each month. This makes me a subscriber to a PECS, and I am a subscriber in my individual capacity.
I am still not convinced why it is relevant, for the purposes of dealing with spam, as to quite how I connect to my mail server, and you may well be able to poke holes in this, or have a reason why a different approach should be considered?
> I do feel like I am trying to tease a rabbit out of a hat here :-)
DeleteAnd everyone knows that the best way to do this is to make sure that the damn rabbit is well and truly in the hat before you stick your hand in to pull it out...
If it would help / be interesting, I'm more than happy to have a chat over some beers one lunchtime / evening, with bodies of legislation to hand, as it might be easier than doing so by text!
Well, I do get in to London occasionally (LINX next week), and do drink :-) so maybe some time.
DeleteIf any help, in discussions with ICO, the person contracting for the "email service" did seem to be what they were looking at, but they were confused on many things (especially when my employer is an ISP anyway) so not really help there.
DeleteLondon is do-able, Bracknell is easier (I'm based in Newbury), so see if it takes your fancy one day.
Delete(Consistent with the relatively poor degree of definitional accuracy demonstrated by the legislation in this field, "beers" was a term I used loosely too, being a tee-totaller :))
Ha, Bracknell is very easy! I was making assumptions, sorry. Ha, and yes, I don't drink beer, but I do drink other things... More than happy to have a chat some time - maybe we should invite you to Cafe Rouge in Wokingham one evening for a meal.
Delete> Bracknell is very easy!
DeleteSounds good.
> the person contracting for the "email service" did seem to be what they were looking at
ReplyDeleteWhich, from a common sense perspective, seems pragmatic for the purposes of this legislation. But, of course, it presupposes that one can be a subscriber of an email service, which, in my view, perhaps seems questionable.
For your broader interest (broader since it is not email and not in Europe, but still, I think, of some relevance to the discussion here), take a look at the FCC's 2002 opinion and order on pulver.com / "Free World Dialup" service: held not a telecommunications service (their equivalent of an ECS), but an unregulated information service (akin to our ISS).
Oops. 2004, not 2002:
Deletehttps://apps.fcc.gov/edocs_public/attachmatch/FCC-04-27A1.pdf
It seems that Ofcom does consider email to be an "enhanced" (classificatory, not legislatively relevant) electronic communications service: http://stakeholders.ofcom.org.uk/binaries/consultations/designation/statement/guidelines.pdf
DeleteIt seems that Ofcom is not alone in this. See Table 1 on page 16 of https://www.pts.se/upload/Rapporter/Internet/2009/services-e-com-act-2009-12.pdf
This does not seem quite right to me, though, as I am struggling to see a technical difference between an email server and a web server, such that they should be treated differently.
From one Rev to another, do you actually know any legal beagles (or can you recommend any) which can assist on these matters? I suspect I've got a spammer in my sights which may result in an actual court appearance, so I'm looking to get prepared (plus I'm looking at setting up a site to help others file claims against them).
ReplyDeleteSadly not, I am winging it, but interesting to hear how it goes.
DeleteThere is not, to the best of my knowledge, even one reported case about action under Regulation 22 — my feeling is that this means that there have been relatively few lawyers engaged on it, or else that those who have have been very successful in getting things resolved before it came to court. Having advised in this field for some years, my feeling is that there are relatively few lawyers in the UK who are very familiar with the communications regulatory regime and the privacy side of things — this is one of the reasons I am keen to follow the actions people are bringing (and happy share thoughts, such as the kind of things in this thread, although I cannot formally give "legal advice").
DeleteIf you were willing to spend, I would probably suggest Graham Smith, at Bird and Bird, Stewart Room at PwC, or Andrew Katz at Moorcrofts. Stewart has more contentious privacy experience, but Graham is better known on the communications side of things. I am not aware that Andrew has particular experience in these areas, but he is one of the most geek-friendly lawyers that I know, is incredibly bright and I have a huge amount of respect for him. Do check their prices first, of course...
I did manage to get a case in front of a judge against communicado/bitesize seminars.
DeleteHe refused to consider the regulations on individual subscribers at all as he saw no quantifiable damages.
He also had no idea about the regulation in question so had to be shown a laptop looking at the legislation.
http://www.doesnotcompute.co.uk/blog/case-dismissed
Can you give a brief description of the claims process you've gone through with spammers? Looking back through your blog, it looks like you went straight to moneyclaim.gov.uk (http://www.revk.uk/2014/12/dont-spam-me.html) after sending the notice before action, but my reading of the moneyclaim website seems to suggest that it isn't really there to settle disputes, rather to claim money you can show you are already entitled to (e.g. unpaid invoice, a previous court resolution that has gone unpaid, etc?).
ReplyDeleteIt sounds like for disputes you need to fill in an N1 claim form (http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=338).
I'm just preparing my first court action against a persistent spammer (who has already been told to stop spamming me by the ICO, so they just started spamming me from a different company in the same group!) I'd welcome any advice.
Well, if I am making a claim for damages and they are not paying, that is surely a "dispute"? I have been careful with the Notice before Action to include everything needed, even an offer to negotiate. But Moneyclaim have always been happy to accept these claims, and it is simply a front end for the normal court process as I understand it.
DeleteYour claim on moneyclaim is reviewed before it is accepted, it seems (takes about a day).
> to claim money you can show you are already entitled to
DeleteYes: to claim damages, which the spammer has declined to pay voluntarily, in respect of the harm you have suffered by virtue of their contravention of PECR.
> a previous court resolution that has gone unpaid
I am not sure that going to court to get a judgment about a unpaid some from a previous judgment — I should have thought that this would be more a matter for baliffs?