Tim's partly right and partly not.
In Roberts v Media Logistics there was a judgment by the County Court in
default of defence. It was quantum of damages which was settled out of
course
In Dick v. Transcom Internet however, there was a judgment after hearing
and the judge set damages (the defendant not turning up to the final
hearing of several. In that case the defendant did submit a defence, and
instructed solicitors in the matter ...
I know Gordon's not on this list so, reading from www.scotchspam.co.uk I
find:
"On the 22nd June 2006 Transcom's solicitors, wrote to Gordon Dick
informing him they were acting for Transcom and stating their written
defence. The defence admitted the defender's identity and the
jurisdiction of Edinburgh Sheriff Court but denying the rest. Despite
the earlier threats, no counter-claim materialised.
On 27th June 2006 Gordon Dick and Transcom's solicitors appeared in
Edinburgh Sheriff Court at the preliminary hearing."
-and-
"On 4th October 2006 Gordon Dick and Transcom's solicitors appeared in
Edinburgh Sheriff Court and requested the case be continued to 17th
October 2006 at 10.30am"
-and-
"On 17th October 2006 Gordon and Transcom's solicitors appeared at
Edinburgh Sheriff Court for the continued hearing. Gordon was advised
that settlement was still not forthcoming from the spammers prior to the
start of the hearing."
-but then-
"On 5th December 2006 Transcom's solicitors wrote to Gordon to inform
him that they were withdrawing from representing Transcom as they had
failed to receive instructions on how to proceed in the case.
On 6th December 2006 Gordon appeared in Edinburgh Sheriff Court for the
proof hearing, Transcom were not there and were not represented."
-and then-
"On 30th January 2007 Gordon appeared in Edinburgh Sheriff Court.
Transcom were not represented. Gordon requested final decree (£750 plus
8% interest per annum in damages) with expenses, as assessed, in the
amount of £618.66. The Sheriff replied "yes"."
What this means, it seems to be is that:
1. Roberts v Media Logistics there was a judgment because the defendant
didn't file a defence.
2. In Dick v Transcom, the defendant filed a defence, but essentially
gave up mid-way. He failed to instruct his solicitors how to proceed and
judgment was entered against him in his absence, but at a hearing, and
the /judge/ set the quantum of damages.
3. In both cases there was indeed, an element of pushing at an open
door. But much less so in Dick v Transcom.
In any event both these claims are in the Small Claims Track.
This means even if they were vigorously and fully defended, and the
defence failed, that no precedent would be set. Each County Court is
free to decide cases like this differently.
Tim also says: "which don't say enough about the law that underpins them
to draw a conclusion."
Well, they don't say as much as I would like, but they do say something.
I think what they say is that:
(a) The courts are prepared to protect the rights of the individual in
the Directive and the Regulations
(b) The level of potential damages from a single incident is always
going to be so small that it's extremely unlikely that any Claim under
the PECR is ever going to be seen in a higher court, unless (like the
Data Protection Act claim in Douglas v Hello in which the Claimants were
awarded £50 nominal damages, it forms part of a much larger case.
I think Tim has it absolutely right in one thing -- the question of law
which is likely to arise is "Is [log in to unmask]" an
individual subscriber within the meaning of the PECR or not.
If that question is answered in the negative (which I don't expect it to
be) then the question would then arise as to whether the PECR is a
defective implementation of the Directive.
That would be almost inconceivable in my boot, but if that were to be
case there is potential for (a) infringement proceedings by the
Commission, and more shockingly (b) the UK Government would become
liable for the damages suffered by a claimant, on the rule regarding
State Liability set in Francovich v Italy (which IS binding law in the
UK)!!!!
Nigel Roberts
Tim Turner wrote:
> I am quite happy to be corrected, but did anybody ever see Nigel Roberts or
> Gordon Dick in a courtroom? I thought in both instances, the other side
> didn't properly contest the case? In Mr Dick's example, the allegation went
> undefended, and in Mr Roberts case, the company made an out of court
> settlement.
>
> It seems to me that we haven't really had a satisfactory conclusion in one
> of these Privacy Regs cases yet because in both of these examples, the
> company backed down. The company backing down proves that they thought the
> cost of fighting was likely to be more than the cost of settling - it
> doesn't definitely mean that they were in the wrong. I'm not arguing that
> they weren't, but neither case came to a firm conclusion. Had either one
> been properly contested (for example, on the basis that Messrs Roberts and
> Dick might have been corporate subscribers, which is an argument I've
> certainly seen made for the Roberts case), we might have a more definitive
> answer. I admire anyone who tests the system, but at the moment, they look
> to me like a pair of victories by default, which don't say enough about the
> law that underpins them to draw a conclusion.
>
> Tim Turner
> Data Protection / FOI Officer
> Legal and Property Services
> Wigan Council
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Wed 11 April 2007 16:14
> To: [log in to unmask]
> Subject: Re: [data-protection] Opt out lists
>
> While not disagreeing with you technically (I think you are probably right),
> I was answering really the "Where did the 21 days come from" part.
>
> As a marketing person I know that preparation of different media takes a
> different time.
>
> It is perfectly reasonable for a snail mailer to respond "We have removed
> your details, but our work in progress pile extends for the next 6 months"
> because they have explained with precision what has happened.
>
> Equally, when an email list is "pulled" in advance and passed to an
> outsourcer for processing, there is often a short period of work in
> progress. As long as one states this then there is no obstacle.
>
> Emotionally I feel that the 21 days in Section 10 is the key period, though.
> Here is a number of days for Joe Public to hang his arguments on, and he
> will. I take the view that every removal request is tantamount to a section
> 10 notice for precisely that reason. I'd rather treat it as more important
> than it is lest I meet Nigel Roberts or Gordon Dick in a court room ~bows to
> Nigel and Gordon~.
>
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618 Personal blog:
> http://timtrent.blogspot.com/ See also http://complianceandprivacy.com
> email: [log in to unmask]
> Marketing Improvement Limited, Abbey House, Grenville Place, Bracknell,
> United Kingdom, RG12 1BP http://www.marketingimprovement.com
>
> Important: This message is private and confidential. If you have received
> this message in error, please notify us and remove it from your system. This
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>
>
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Tim Turner
> Sent: 11 April 2007 14:18
> To: [log in to unmask]
> Subject: Re: [data-protection] Opt out lists
>
> Section 10 would be an odd mechanism to use if one wanted to opt out of
> direct marketing - I know direct marketing is almost inevitably annoying,
> but I doubt a university's marketing activities would ever be sufficiently
> bad to cause damage. Section 11 would be the more appropriate vehicle for
> the punter to employ, and it doesn't come with a comparable time limit.
> Indeed, it states that the marketing should stop "at the end of such period
> as is reasonable in the circumstances". At least one large high street name
> once claimed to me (and probably still do) that it takes several months to
> stop getting their junk mail because it is prepared so long in advance.
>
> Cheers
>
> Tim Turner
> Data Protection / FOI Officer
> Legal and Property Services
> Wigan Council
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Wed 11 April 2007 14:11
> To: [log in to unmask]
> Subject: Re: [data-protection] Opt out lists
>
> You have read "working days" into the words "Days". We have 21 days to
> respond to a section 10 notice. These are calendar days.
>
> http://www.opsi.gov.uk/acts/acts1998/80029--b.htm#10
>
> Search for "Days" when the page loads
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of GRAHAM Susan
> Sent: 11 April 2007 13:51
> To: [log in to unmask]
> Subject: [data-protection] Opt out lists
>
> Please can people point me to the relevant bit of legislation? I am still
> looking at direct marketing issues, mainly focusing on the Privacy and
> Electronic Communications (EC Directive) Regulations and the Data Protection
> Act. I have a note that when people ask to be removed from mailing lists,
> this must be done within 21 working days. Unfortunately I did not record
> the source for this. I can find plenty of references in the legislation to
> the need to stop sending marketing materials when asked to desist, but where
> have I got the 21 working days from?
>
> Best wishes,
>
> Susan Graham
> University Records Manager
> Policy & Planning
> University of Edinburgh
> Old College
> South Bridge
> Edinburgh
> EH8 9YL
>
> Tel: 0131 6514 100
>
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