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[log in to unmask]>, at 09:59:59 on Thu, 29 Dec
2005, Tim Trent <[log in to unmask]> writes
>>If it has been the data protection act then no-one is prosecutable
>>unless they have a physical legal trading entity in the land where they
>>are prosecuted.
>
>It wasn't the DPA.
>
>>>>My point here was not that it was but "had (or I seem to have written
>"has") it been.
I still don't understand your point. Is it a pedantic one that the case
was brought in England against a company from Scotland, and that would
not be allowed under the DPA?
>> Now the Bailiwick of Guernsey is special since it is not in the EU,
>>but is also "in the UK" except when it does not want to be, it seems.
>>So was this a valid case under UK law, or should it have been brought
>>under BofG law?
>
>It was brought under the Privacy and Electronic Communications Regs.
>These are arguably the most appropriate anti-spam laws in the UK (as few
>people seem to believe the analysis [1] which makes spam a DPA offence).
>
>As such, if the sender of the spam is in the UK, then they've broken the UK
>law.
>
>>>>Interestingly it looks very much as if media Logistics is the data
>processor here, not the data controller. So a huge muddle more than
>anything else. Now while the terms are DPA terms it seems that, as a
>subcontractor MLUK would not themselves be liable for anything except any
>alleged misbehaviour of their own.
I suppose the question is this: under the Privacy Regulations does a
subcontractor break the law if contracted to do some unlawful? If I ask
a subcontractor to shoot someone for me, I suspect they are indeed
guilty. Why would sending spam be any different ?
It isn't helpful to try and express the Privacy Regulations using DPA
terms like Data Processor, because they simply aren't appropriate.
>>Colchester is an interesting choice of court venue, too, since the
>>company's registered office is a long way from there and its HQ is in
>Falkirk!
>
>A puzzle. Perhaps the plaintiff has an associate in the area who was able to
>file the papers for him.
>
>>>>It appears from Mr Roberts's email to me that this is the location of the
>solicitor who filed the defence from MLUK
One mystery solved, then. AIUI, the defendant can get a Small Claims
hearing moved to whatever court is convenient for them, so the one
nearby their solicitors sounds entirely plausible.
>>The SI says:
>>"Proceedings for compensation for failure to comply with requirements
>>of the Regulations
>> 30. - (1) A person who suffers damage by reason of any
>>contravention of any of the requirements of these Regulations by any
>>other person shall be entitled to bring proceedings for compensation
>>from that other person for that damage."
>>
>>What possible damage can he have suffered?
>
>I suffered from very real financial damage a week before Xmas when a spammer
>calling himself Craig Walton, purporting to act as a sales agent for the
>Clerical Medical company, sent me a very large attachment at a time when I
>was collecting email using my mobile phone.
>
>The immediate cost was five pounds worth of airtime (before I gave up trying
>to download it), plus another five pounds to buy some public wifi
>connectivity to flush the item through. Less well defined is the cost to my
>business of not being able to access email for the several hours in between,
>or the overall cost of anti-spam measures that I have to deploy to reject
>some five thousand spams a day.
>
>>>>Ah, now that is definite damage, and real damage as well. However it
>could be said that by abandoning your download attempt you did not seek to
>mitigate your loss and thus caused yourself the consequential loss you
>suffered
I stayed online for ten minutes in an attempt to mitigate the loss (of
other emails). That's my rule: I would expect all the normal emails to
have arrived within two minutes, but persevere for up to ten.
Subsequently, the acquisition of a wifi account and use of that was a
second (this time successful) attempt to mitigate the loss.
>>I do not say this because my profession is marketing. I encourage all
>>businesses to deeply Permission Based marketing at all times so my
>>stance is quite the reverse! I say this because I cannot conceive of
>>damage caused by the arrival of UCE.
>
>The arrival of UCE can occasionally cause the complete failure of an email
>system due to the volume of traffic involved. I currently reject almost all
>attachments (I must add Clerical Medical's .wmv to the list now, I suppose).
>Of course, I will then run the risk of damage caused by erroneously
>rejecting a .wmv file that someone urgently needed to send me... Is that
>damage 100% attributable to Clerical Medical?
>
>>>>No. That damage is 100% attributable to you as the user of the system.
Oddly enough, I might classify it as "mitigating my loss", which you
seem to approves of, nay almost demand.
>If you configure your system, for example, to send all email containing the
>word "Viagra" to the trash and you have a prospective client who emails you
>"Can you help me with my campaign for Viagra?" and you lose a £1m contract
>because you never saw the email, that is your free choice.
I wouldn't configure my system in such a crude fashion - it would be
running a set of rules based on the content of the email which
determined how it was classified.
However, any such configuration is a way to mitigate my loss (the loss
caused by having to trawl through 5000+ spams a day). The missing
element in the equation is how the marketing industry proposes to pay me
the mitigated damages resulting - given that I've let them off the hook
of paying the entire unmitigated damage.
>>http://www.google.com/search?q=%22Nigel+Roberts%22+alderney may tell us
>>who he is. I will be emailing him to ask why he brought the action
>>>>I expect he is fed up with them. Who is not fed up with them? They are
>a fact of life, however.
So is driving a car without tax and insurance, but as a society we do
attempt to discourage it, and very occasionally prosecute offenders.
--
Roland Perry
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