Readers of this list may be interested in the situation described in the
below email,which I sent 14 days ago to the company concerned, and which
has been acknowledged.
I would be very interested in any comments on the content, and views on
subsequent steps. Particularly anything whcih I have omitted to consider
and which can be used in future communications of this type with other
organisations would be most helpful.
Does anyone here think that the law exempts TPS registered telephone
numbers -- that is to say, becuase it was contained in an advertisement
for a private sale of a motor car, I have given up my rights not to
receive junk calls?
Nigel Roberts
-----------------------------------------------------------------------
<REDACTED>, Director
<REDACTED> UK Ltd.
<REDACTED>
LONDON
<REDACTED>
(BY EMAIL AND RECORDED DELIVERY POST)
Dear <REDACTED>,
THE FACTS
---------
This morning your company called my private, ex-directory telephone line
at my house in <REDACTED>, Essex (awhich number -- <REDACTED> -- was
registered with the TPS on 27.8.2004).
The call was answered by my wife. The caller asked about the
advertisement we'd placed for sale of our Suzuki Jimny, in which
advertisement I had listed that telephone number as the number for
prospective purchasers to call, stating that it was a private sale.
She inquired if the car was still for sale. Thinking your call a genuine
inquiry by a prospective purchaser (the caller stated to my wife she
might know of someone "interested in the car") my wife gave the caller
my work number, and I subsequently spoke to her.
The caller said her name was <REDACTED> and informed me she had a couple
of people interested and asked if I would like more information. I said
that I was always pleased to hear from prospective purchasers, but that
before I went any further I'd like her full name and full details of her
company.
She told me her name was <REDACTED> and that your company was called
'Vehicle Seller'. After asking several times (she seemed reluctant to
identify your company fully at first) she eventually gave me her full
name and your company details.
I asked her what the call was about and she told me that having seen our
car advertised in Autotrader magzaine (presumably in the Essex and N
London edition) she had a couple of people who were interested in
purchasing our car, and could she send me the information about them
free of charge. I said that I would be very happy to hear from any
prospective buyers and they could forward any details by email to the
email address in the advertisement.
Surprisingly she then asked me to supply her with my contact information
for this purpose. I observed that she must surely have our contact
details in front of her as *she* had contacted us, by means of the
already mentioned unsolicited telephone call. At this point, given
today's headline news about the possibility of ID theft, I expressed
mild surprise. After this, she decided to connect me to you.
After some period of hold music and recorded announcements extolling
your company's professional services, I got to speak to you.
You told me they were offering free information about people who were
interested in buying my car. I said I would be very glad to hear from
any prospective purchaser. But you then said I had to pay a fee of
£89.99 to get the details of these prospective purchasers.
That's not my definition of 'free'. I don't think this can be described
as 'free' by any stretch of the imagination.
It seems clear to me they your company telephoned us in order to solicit
us with the aim of selling your £89.99 service. You said something like
"Well, even if that's true there's no law against it". I said I was
sure there was, which seemed to cause you some considerable amusement. I
trust you will find the contents of this letter equally amusing.
When I informed you that I believed that your unsolicited sales calls to
us were, in fact, unlawful and that I could issue a Claim (summons) you
challenged me to do so (your exact words, which I noted down at the time
were:
"Go and do it, then".
You then asked me to tell him what law your might have contravened. Your
exact words (which I wrote down at the time) were exactly:
"What law have we broken by ringing you? We haven’t broken no law"
I told you that I did not wish to debate the law over the phone and
would write to you setting out the position. This is that letter.
THE LAW
-------
It is not a matter for me to set out the law in detail for you.
It seems to me that it must be your responsibility to stay within the
law, and obtain proper advice from solicitors or even counsel where
necessary.
It further seems that either (a) you are completely in ignorance of the
law applicable your business which business seems to include the making
of unsolicited sales calls, or (b) you must know the law and are
deliberately flouting it.
Which is it?
I prefer to take a charitable view, and shall assume the former, that
you are merely ignorant.
It would therefore seem only courteous and helpful for me point you in
the direction of certain legal rules on which I intend to rely if my
claim against you goes to court.
You should now refer to :-
1. The Privacy and Electronic Communications (EC Directive) Regulations
2003 (Statutory Instrument 2003 No. 2426)
2. Directive 2002/58/EC of the European Parliament and of the Council of
12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive
on privacy and electronic communications). (S.I. 2426 being the
implementing instrument for the Directive within the UK)
Your attention is particularly drawn to :-
(a) the definition of subscriber;
(b) the provisions relating to unsolicited calls for direct marketing
purposes (r.21(b)); and
(c) the provisions relating to keeping of a register for the purposes of
r.21 (r.26).
EVALUATION
----------
The law is designed so that "safeguards should be provided for
subscribers against intrusion of their privacy by unsolicited
communications for direct marketing purposes".
It seems to me that "unsolicited communication for direct marketing
purposes" exactly describes the situation in relation to your company's
actions in respect of everyone you call in similar circumstances to the
above.
It seems entirely clear to me that publication of my telephone number in
an advertisement that is directed at genuine enquirers and prospective
purchasers does not and cannot constitute a licence for you or companies
like yours to subject me or my partner to intrusive telephoned
solicitations for commercial offerings.
You have no knowledge of whether your unsolicited sales calls are
disturbing a meal, work, or something else entirely . . .
To put it all plainly, (since you seem to be someone who would
appreciates plain speaking) ..... I (and many others) are royally fed up
of such calls.
You are /not/ a prospective purchaser of my motor vehicle. You are
merely selling a service which could reach prospective purchasers for a
fee. The situation is no different to that if the advertising department
of the local paper decided to ring up and market their Small Ads service.
Which is against the law.
CONCLUSION
----------
Despite your evident amusement during our telephone call, your company
has clearly acted unlawfully. I am entitled therefore to make a Claim
against you (r.30), ** and I therefore do so by means of this letter **.
Unless we reach an agreement on this Claim within 14 days of the date of
this letter, please TAKE NOTE that I /will/ issue proceedings for
compensation for your failure to comply with requirements of the
Regulations.
This will be in the form of a Claim for Unspecified Amount (formerly
known as an Ordinary Summons) in the County Court.
I intend to limit my Claim to an amount which will enable the Claim to
be heard in the Small Claims Track (at the time of writing such Claims
are those of £5000 or less - thus the maximum which may be awarded is
£5000).
Should you wish to make an offer of settlement, I would be happy to
communicate with you in that regard either by open letter or on without
prejudice terms.
I look forward to your company's reply by return email or post.
Please address all correspondence relating to this to me at my
<REDACTED> address, as follows.
<REDACTED>
or (preferably) by email and/or fax.
Those details are :-
E-mail: <REDACTED>
Fax: <REDACTED>
Yours sincerely,
Nigel Roberts
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