I read section 21 of the PECR differently.

You might also consider the case of the builder who redeveloped my kitchen. The stupid man got drunk and was carrying a knife, something he concealed when he knocked on a friend's door, and which he later handed to them for safekeeping, realising, he says, that it was wrong to carry it.

He is currently on probation and has to wear a curfew tracking tag for carrying this knife at all.

He did not use the knife, but he carried it.

You and your brick, the builder and his knife, and the cold caller and the call appear to me to be very much the same thing.

One does not take a brick for a walk. One does not take a knife for a walk, and one does not call someone with whom one has no relationship just to pass the time of day

On 1 Apr 2010, at 11:39, Tim Turner wrote:

I agree with the ICO. They contact the organisation and tell them that a
complainant thinks they were about to receive a marketing phone call.
How would that stand up at the Tribunal? The Tribunal is not about right
and wrong - it's about evidence.

Any formal action the Commissioner takes could ultimately end up at the
Tribunal - some complaints do not meet the threshold required. A person
who wants to complain with any force needs to provide evidence of the
breach, not evidence that the breach was clearly about to happen.
Regulation 21 might focus on instigation, but the only worthwhile proof
of the nature of the call is to let it play out.

I walk down the street holding a brick. I stop in front of a window,
still holding the brick. Can anyone prove - to a legal standard worth
pursuing - that I was about to chuck it through the window? No. If you
wait, the window gets broken, but at least I can't pretend that I was
taking the brick for a walk.

One can wait for proof and complain about it, or put the phone down as
soon as the unsolicited nature of the call becomes obvious. I don't
really see how you can do both and still give the Commissioner enough to
go on.

Tim Turner


Tim Trent - Consultant
Tel: +44 (0)7710 126618
web: ComplianceAndPrivacy.com - where busy executives go to find the news first
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