I was rather disheartened when a judge decided that I had no loss from receiving junk mail and so could not make a claim under the The Privacy and Electronic Communications (EC Directive) Regulations 2003.
It was a real shame as it made the whole legislation somewhat moot. I really do feel we need a simple minimum loss that does not have to be proved, much like Late Payment of Commercial Debts (Interest) Act 1998 where £40 applies. This would make such cases work, as one would not have to prove an actual loss for the hassle of handling junk emails.
Anyway, time to try a new tack, inspired by a junk email today from a UK company :-
Yes, they really emailed: i-hereby-order-consultancy-services@by-sending-this-email-i-agree-to-pay-a-kennard-50-ukpounds.uk
I don't think I have used that in any mailing lists or anything, I am at a loss as to how they found it, to be honest.
I have told them £50 in next 7 days or a county court claim.
Does loss matter following ParkingEye vs Beavis?
ReplyDeletehttp://www.hardwicke.co.uk/insights/articles/the-law-on-penalties-after-parkingeye-v-beavis
tl;dr the judges decided that although the actual losses were effectively nothing, that a reasonable charge formed a deterrent
Not sure that case, very interesting as it is. Is relevant. The costs issue comes from statute and not a penalty clause in a contact. On the spam I am arguing that an agreement was formed.
DeleteIf anything, I'd have thought one would attempt to apply the decision in Vidal Hall to PECR, rather than ParkingEye.
DeleteAlternatively, we wait and see whether the revised ePrivacy framework takes the same approach to compensation as the GDPR, as that too would appear to solve the legislative problem.
Have you ever successfully claimed through PECR? I'm currently trying to claim from a website that misled me as to what they were going to use my email address for, and then spammed me 27 times.
ReplyDeleteHere's a list I've assembled of all the cases I'm aware of under Reg 22 of PECR:
DeleteList
Some successful out of court, some successful in court, some unsuccessful in court.
The summary of RevK's experience is worth a look, especially in terms of thinking about proof of loss/damage. You might try to weave Vidal Hall in, to soften the PECR requirement, but you might also find a small claims court judge unwilling to make that leap.
Thank you, an excellent resource. If the emails were sent marketing others' products and/or services, who is responsible? The affiliate (who actually sent the email) or the other party (who paid the affiliate to do so)?
DeletePECR provides that "a person shall neither transmit, nor instigate the transmission of, unsolicited communications". In this case, the actual sender is likely to be the person "transmitting", and the person who paid the sender / provided the content is likely to be the one who "instigated" the transmission.
DeleteI am not aware of a case against an "instigator". It might be easier for an instigator to make out the regulation 30(2) defence, but I haven't given it too much thought.
Missing from your list: I've won 3 cases out of court, totalling about £500.
Deletehttp://blog.nexusuk.org/2015/04/another-win.html
http://blog.nexusuk.org/2017/01/village-hotels-yet-again.html
One of those was settled out of court after filing court papers against VUR Village Hotels, the second was settled out of court after just the Notice Before Action - same company, who had started spamming me again. Since I had already settled with them the first time I had suitable contact addresses to serve the notice to this time so didn't have to go to the bother of filing with the court to get their attention.
There's a third case that went to mediation before the other party settled. It isn't on my blog as the settlement included removal of the blog post that referenced the company concerned.
Thanks — added :)
DeleteNeil - I've just had a payout, I won't name the spammer until I get their letter giving the conditions (it might be secrecy) but it's a well-known site that you may well have come across. Sent me many unsolicited emails and offered no marketing opt-out when giving my email address for non-marketing purposes. Win! (£500!)
DeleteNeil - just got the letter. No mention of requirements, they seem very worried about what I uncovered. It was Broadband Genie, the comparison site. I registered to get a list of results (back before I knew about AAISP etc.). They subsequently sent me no fewer than 27 marketing emails - which I had no chance of opting out of originally. A nitpick but apparently they consulted legal advice and believe "there may be some actions we need to take to ensure our compliance". Ha!
DeleteCongratulations!
DeleteNo, that's not a "nitpick".
I'd be curious to see how you got to the figure of £500, or if they chose it?
To be quite honest, it was a figure I got out of thin air. I started at £200, then kept on raising it until they realised I was serious, haha. I almost wish I'd asked for more!
DeleteI tried the Notice Before Action / small claims route over a year ago. I made three attempts against UK companies two of which were successful and one for quite a large amount. However, the third was contested; the case got sent to my local court who summarily dismissed it because "it is a matter for OFCOM not the court" and this was for a small claim of a debt so I don’t know how they worked that out.
ReplyDeleteI did think about continuing but other things in my life got more attention. Now that spam seems to be on the rise I may just pick this up again.
Have you heard back from them?
ReplyDeleteNope. Sent another email. Maybe I'll do a letter.
Delete