Roberts sued Media Logistics (UK) Ltd, a marketing firm based in
Falkirk, Scotland, for sending him unsolicited emails about
contract car hire and fax broadcasting businesses.
The judge's ruling is unlikely to influence future courts: it
was an undefended Small Claims action – the simplest procedure in
the English court system, which can be used by anyone without legal
representation; the judge expressed no opinion on the merits of
Roberts' claim; and the question of damages was never addressed
because Media Logistics settled with Roberts before a scheduled
damages hearing took place.
But even if it sets no precedent, the action was surely a rare
victory in the spam wars.
Media Logistics has suffered negative publicity from national
coverage by BBC News, ITN News, Channel 4, The Times, The Guardian,
The Independent, Daily Mirror, The Sun and overseas publications.
Now Roberts is working on a kit that will make it easy for others
to sue British spammers.
Roberts has shared his proof of concept with OUT-LAW – all
correspondence between himself and Media Logistics, the company's
solicitors and the court documents. He plans to make the necessary
lawsuit tools publicly available from his own Spam Legal Action
website.
The complaint
Roberts received an email to his private email address on 8th
August 2005 from Media Logistics that promoted a website selling
contract car hire services. It wasn't the first he'd received from
the company, but it was the one that provoked his action. He wrote
to the company that day, complaining that the email had been sent
in breach of the law. Roberts wrote that he had never had any
dealings with the company and had never given his consent to
receive marketing emails from them. The email therefore breached
the Privacy and Electronic Communications Regulations of 2003.
He demanded four things to prevent him suing: an apology;
details of who provided his personal information to Media
Logistics; details of all personal information held by the company;
and damages to compensate his losses. He pointed out that spam like
this had forced him to incur the cost of email filtering
services.
The company replied: "Media Logistics (UK) Ltd apologises for
any distress or inconvenience caused by the email sent to you…" –
but it refused to name the supplier of the email address and
refused to pay damages to Roberts, instead offering to donate £50
to a charity of his choosing. It also said the personal information
held about Roberts was limited to his email address – and that this
had been deleted.
Who provided the email address?
An exchange of correspondence followed. Roberts asserted his
rights under the Data Protection Act, asking to see all the data
held about him, which would include the identity of its supplier.
He also pointed out that he had not requested the deletion of his
data – and that the Information Commissioner would surely frown
upon a company deleting data rather than complying with the
exercise of a request for sight of the data, as provided for in the
Act.
Roberts, who lives in Alderney in the Channel Islands but comes
from the Colchester area, sued in Colchester County Court on 23rd
August. He alleged breaches of the Privacy and Electronic
Communications Regulations and of the Data Protection Act. He said
the actions of Media Logisitcs caused annoyance and nuisance,
inconvenience and expense – including interference with the proper
functioning of his email, the need for additional disk storage and
a subscription to SpamCop.net, delay in his receipt of legitimate
email, and time wasted sorting legitimate email from junk. Roberts
requested damages but did not specify a sum at this stage.
On 19th October, the court ruled in favour of Roberts. Media
Logistics did not appear in court to defend the action. A damages
hearing was scheduled for January 2006. Settlement negotiations
took place by mail, but Roberts still wanted to know how the
company got his email address. Eventually, after refusals and
misinformation, the source of the data was revealed, by Media
Logistics' solicitors: a company called Vserve Limited. That
company was dissolved in 2004.
The solicitors explained why his email address had been used:
"Our client assumed in good faith that it was a business e-mail
address and therefore our client deemed it reasonable to market its
services to you."
If it were a company email address, it is true that the
company's activity would escape the reach of the 2003 Regulations.
But like many email addresses, there was no way to tell from
Roberts' address in isolation whether it was a home or business
address.
Roberts pointed out by reply that, if the argument was true, the
person dealing with the complaint at Media Logistics might have
expressed it sooner. "I simply don't believe him," he wrote of the
individual handling the complaint within Media Logistics. Roberts
described it as "simply a transparent attempt to justify his
spamming activity".
Damages
Roberts suspected that Media Logistics had simply acquired a
'spam CD' with a list of addresses and nothing else. He rejected an
offer of £100 and said he would settle for £270 plus his £30 court
fee. The company paid up and the damages hearing was cancelled.
Some commentators have asked why Roberts settled once he had a
court ruling in his favour. But the most he could have received in
the January hearing was £300 plus his expenses of £30. When a claim
is brought in a County Court, the filing fee depends on the sum
sued for. The cheapest claim to file costs £30 – but this only
works for sums claimed up to £300.
If you pay £120 when filing a Small Claim, you can sue for up to
£5,000. But you may not get that much even if you do win the case –
and it seems unlikely that Roberts could have won such a sum in the
circumstances of his claim.
He told OUT-LAW, “I could have claimed for 'unspecified amount
not exceeding £5000' and paid the higher fee, I guess, but since it
was just a couple of spam emails I thought I'd see how the Small
Claims Track and a defendant coped with a Claim under the
Regulations.”
The Regulations required him to show damage – and to sue for
compensation for that damage, not for damage caused by other
spammers. Media Logistics did not take the opportunity to argue on
damages: it could have admitted liability and claimed that damages
should be nil. Its obvious argument would be that there is no
quantifiable loss and that it should not be held liable for
Roberts' spam filtering costs.
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer
with Pinsent Masons, the law firm behind OUT-LAW, said: "Mr Roberts
was right to settle after winning his judgment. If a damages
hearing took place in court, he may have won some compensation –
but there was a real risk that he would receive nothing at all
because proving loss caused by spam and attributing that loss to
one spammer would be very difficult."
Robertson believes the settlement figure of £300 holds no
significance for future court cases – "although it hopefully sends
a strong warning to companies that get email marketing wrong," he
said.
Roberts concluded: "This is a small victory. But perhaps some
spammers will now start to realise that people in Europe won't
tolerate their email inboxes being filled with unwanted junk."
Spam must originate in the UK for someone to sue under the UK
Regulations, although there are equivalent laws across the EU (the
Dutch privacy regulator has fined spammers as much as €27,500).
Roberts did not approach the British regulator, the Information
Commissioner – who would have to order Media Logistics to stop
sending spam and then await a breach of that order before the
company could be fined in a British court.
What Roberts hopes is that others will follow his lead and,
where possible, use the toolkit he is preparing to make freely
available at his website to take matters into their own hands and
fight back against spammers.
