Of far more significance is the Dutch regulator, OPTA, who has just imposed
substantial fines on spamming companies Speko, Van Leerdam's and Zmart.
Fines like that are career limiting for the marketing manager who does not
deploy permission based marketing. OPTA has our applause.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Roland Perry
Sent: 28 December 2005 19:07
To: [log in to unmask]
Subject: Re: [data-protection] Extraordinary UK Court Ruling on Spam
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.
> 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.
>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.
>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.
>If my assumption that this is
>travel and lodgings to Colchester is right (and I have no reason to
>believe that it is right, but it "feels right") then he was not
>entitled to these, since costs cannot be awarded in the small claims
>process. Equally I was sure that "out of court settlements" were not a
>part of the small claims procedure (the original article I quoted from
>may be at fault here)
I agree about the element of "costs" in bringing the action, but not with
regard to the damages that the law specifically allows the plaintiff to
claim. The part about "out of court" settlement makes little sense, either,
but no more or no less than other technicalities are regularly mis-reported
in the press.
>I can see no possibility for damage suffered here.
I have given an example.
>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?
>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)).
--
Roland Perry
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