I will do some snipping!
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Roland Perry
In message
<!&!AAAAAAAAAAAYAAAAAAAAAIfCFjaFV0BEsFq4L0YKekfCgAAAEAAAAJpC8tNy89NIitcBR
[log in to unmask]>, at 17:20:44 on Wed, 28 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.
> 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.
>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
>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 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.
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. It matters not
that you made this decision based on a spam email in days gone by.
>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 you'll find that he's fed up with spammers, and especially UK-based
ones who really ought to know better.
[1] Where email addresses are collected directly from a person, they
must be informed of the purposes at the time of collection
(Article10).
The data subject must be allowed to object at the time of
collection, of subsequent use, or when the list is resold
(Article 14)
Where the email address is collected from a public space (eg
website or usenet) on the Internet, it is unfair processing
(Article 6(1)(a)), contrary to the purpose principle (Article
6(1)(b)), and does not satisfy the balance of interest test
(Article 7(f)).
--
>>>I expect he is fed up with them. Who is not fed up with them? They are
a fact of life, however. His email reply to me was brief and polite, but
not as complete as I would have hoped for. He has not yet answered my
additional questions and may well choose not to. We have no evidence of
whether any of the above has taken place or indeed has not taken place
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