On Monday I took a UK Spammer through the County Court seeking damages
and distress damages for breach of the Data Protection Act and the
requirements of the Privacy and Electronic Communications Regulation.
I won the case - and was awarded 5 pounds compensation damages, 120
pounds costs and 50 pounds loss of earnings.
I posted here over recent months concerning the case - and said that I
would provide an update:
There were two defendants : an individual - "A trading as XYZ email
marketing" - "ABC email marketing Limited"
All shares in "ABC" are owned by "A".
"A" was registered as Data Controller - "ABC" were not - however they
are now.
"A" sent me unsolicited commercial e-mail without my permission.
I complained - they said it was not their fault as they had obtained
my e-mail address from a separate company from whom they bought an
opt-in list - they had done nothing wrong and that they had deleted my
details. They did not understand that it was still their
responsibility
Three weeks later I received more spam - this time from "ABC".
I took both parties to Court - Small Claims Track.
Both parties filed a defence and submitted a bundle - there was
significant information in the bundle which I had never seen before
which was useful but which didn't change things. I could now see that
they had sent out 1870,000 identical emails - only 331 actually
"clicked through" and went to the web site. Most surprising that
there was so little interest in the interesting marketing message if
all those 187,000 had opted-in!!
The Court Appearance
The defendants did not show. The Judge explained that I still had to
prove my case. He was very helpful created a relaxing but formal
atmosphere - pointed out politely if I strayed off track. (eg I said
that if the defendant had been present I would have asked them a
specific question - he said that they weren't - so the question was
not relevant).
He asked me what made me think I was entitled to damages - I said that
this was stated in the legislation. He asked me what I thought was
the relevant legislation; did I have a copy with me and could I point
out where it said this. (Fortunately I did have the DPA and PECR ,
and could do so). He then asked me various other questions pertaining
to the legislation and expected me to point out the relevant sections
- again I was able to do so - he seemed willing to accept the copies I
had printed off from the internet as being definitive!
I would say that he was definitely not au fait with the legislation.
(I was surprised at the time - but can see that a Judge cannot be
totally au fait with all aspects of all legislation and probably
expects the legal representative or the LIP to point it out to him.)
In the end he homed in on just one point of my case : On a certain
date I told "A" I did not want any e-mails from them. On a later date
"ABC" sent me some. This was against the regulations.
(He seemed quite happy to treat "A" and "ABC" as the same item - even
though I was treating them as separate legal entities).
He asked me what had the defendants' actions actually cost me -
indeed, he said that there could be a problem in defining tangible
costs. I knew that this was a sticking point and went over the
generic costs which spam costs me; I said that I could not put a
figure on two e-mails but I thought a token amount of 5 pounds would
be appropriate. He agreed. (Should I have said fifty?) I have seen
it said that damages should not be so low that respect for the policy
of the legislation is diminished; I think this is an interesting
aspect and will start another thread "Spam - Damages"
He awarded all court fees (120 pounds), the 5 pounds compensation, and
50 pounds loss of earnings (which is maximum). I had spent about 20
pounds on photocopying, postage, stationery: none of these were
claimable.
I found it a very educating experience - well worth the time and
effort - and would (may) do the same again.
Time in court an hour and a half. |