Spam battle rages in court
OUT-LAW Radio, 08/03/2007
We talk to the two sides in one of the few spam suits to reach
court in the UK about the case and its disputed aftermath.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly Podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in-depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and coming up on this week's show we
look at a dispute over spam that, for once, actually made it to the
courts.
But first, the news.
- Travel operators are not being open enough about data
transfer;
- Better safeguards are needed in new government data sharing
plan; and
- Bomb trial man sues Microsoft over porn history.
Travel agents and airlines are not being open enough with
customers about the fact that personal information about them will
be handed over to US security agencies if they travel there,
European data protection experts have said. The Article 29
Working Party, Europe's privacy watchdogs, have published a report
saying that airlines and travel operators are still not telling
people enough about the transfer of information. Since the
terrorist attacks in the US on 11 September 2001 US
security agencies have insisted on being provided with much of the
personal information held by airlines on every passenger from
Europe entering the country. The Working Party wants all passengers
to be informed about the data sharing scheme, in accordance with
data protection law.
Better safeguards are needed in new government data sharing
proposals according to the Conservative spokesperson of Home
Affairs in the House of Lords. Baroness Anelay of
St Johns' has tabled a series of amendments to a new
government bill. The Serious Crime Bill allows for the sharing of
data for comparison as a crime fighting measure but the
government's proposals are too wide ranging and do not contain
enough safeguards against the invasion of citizens' privacy,
according to the amendments proposed by Anelay. She has proposed
that the Information Commissioner's Office be involved in drafting
a data sharing code of practice, that the Audit Commission produce
a report before every data [merging/matching] instance justifying
the exercise, and says that any extension to the scope of the bill
must be limited only to the detection and prevention of serious
crime.
A man awaiting trial for selling illegally modified firearms and
for possessing bomb making equipment is suing Microsoft because its
software did not delete his pornography browsing history.
Michael Alan Crooker has filed a suit in the
Massachusetts Supreme Court which claims $200,000 in
damages from Microsoft because the company failed to keep his
private data secure. Crooker was raided in 2004 by the US Bureau of
Alcohol, Tobacco and Firearms in an investigation into the sale of
an air gun fitted with a silencer. Court papers say that the agents
found suspected bomb making equipment and confiscated his computer,
which was sent for analysis to forensic computing experts at the
FBI. That analysis revealed sexually explicit videos of Crooker and
his girlfriend and cached pornographic internet pages. Crooker's
suit says that Microsoft claimed that it would keep his data secure
and did not. Its failures, he says, have caused him great
embarrassment and he is now seeking the $200,000 in compensatory
and punitive damages.
That was this week's OUT-LAW news.
Spam is a true modern menace clogging up networks and inboxes
and seriously threatening to derail email as a useful tool. But
convictions for carrying out spamming are rare, since UK law does
not apply to the untraceable offshore enterprises behind most of
the messages you receive.
That made a case in Edinburgh's Sheriff Court all the more
remarkable. When the Court awarded damages for an individual
against a British company for sending spam it was just the second
time such a ruling had been handed down in the UK. But
when OUT-LAW investigated further, it seems the case is still
disputed, and neither side has given up the fight.
It began when Gordon Dick received an email from Transcom
Internet Services advertising its ISP wares. Dick was none too
pleased.
Gordon Dick: Last February it was,
February 2006 I received some unsolicited email to one of my
email addresses that had never received spam before. They collected
my email address from what was a private opt-in only mailing list
that they happened to be on. So after looking at it, I decided that
I was going to take it further. So I wrote to them asking them to
explain their actions and they wrote back and effectively
challenged me to take them to Court, so I did and I won.
Dick's case was that the mail broke the Data Protection Act and
the Privacy and Electronic Communications Regulations.
Dick: It was breach of both the Data Protection
Act in that they had unfairly collected my data comprising my email
address as well as a breach of the Privacy and Electronic
Communications Regulations which say that you are not allowed to
spam an individual subscriber without their consent or soft option.
The soft option being that they are already a customer of yours, as
I was not they did not have that option.
Transcom, though, says its mail was a legitimate piece of
marketing sent only to people who had contacted it about its
services. An email of special offers sent once a year to all its
business contacts, it has been the subject of only one complaint in
more than 10 years of sending, said Transcom, that complaint
was Dick's.
William Smith: What we do every year is we take
all of the emails that we have received from customers, you know
enquiries, that sort of stuff, and we put them all into a great big
spreadsheet, we take out all of the rubbish and then we post a
bulletin to show all of our latest offers. We only accumulate email
addresses based on people contacting us. There is no other way to
get those email addresses. We do not, you know, go and look at
people's web pages or anything like that. It is simply taken from
an Outlook database on a machine where people have contacted us. We
looked into how we got Gordan Dick's address. He did
communicate with us but through a Nominet user-group. He is suing
us for one spam which actually came from an unsolicited Nominet
users-group to us. So, Nominet were actually posting messages to us
without us ever asking for them. Everybody that was on that
users-group that had posted a message [was] received in our inbox
and within our inbox, of course, we collected all of the people
that had communicated with us and we sent them our offers, which we
do every year, and we still do. We did this year as well and
Mr Gordon Dick's name was not in it and I do not have one
single person coming back out of god knows how many thousands.
The case went to Court, but as a proof hearing approached,
Transcom made Dick an offer of settlement. Dick and Smith differ on
what happened next.
Dick: The day before that hearing they actually
offered to settle for the full damages out of court but that never
materialised so it had gone back to another hearing and then gone
back to another proof hearing.
Smith: Commercially it was just going up and up
and we actually made an offer to Gordon Dick to actually, for
commercial reasons, we were going to give him, I think it was, £835
which included his Court cost and the original £700 that he had
asked for, but he rejected that.
Matthew Magee: He says he accepted that
and a court date was changed from 4 October to 17 October and
that that money just never appeared and that he accepted …
Smith: He did not accept it. He never
accepted that and the offer is still there.
The case proceeded, and just before the crucial court hearing,
Transcom pulled its lawyers from the case because it decided that
it no longer made financial sense to fight it.
The allegations went undefended and the court ruled for Dick.
This means that the interesting arguments about whether or not the
email counts as spam were not ruled on; from the minute Smith told
his lawyers not to attend, the verdict was inevitable.
Smith: We had made him an offer for commercial
reasons about £800. That was rejected so instead of running up huge
bills just to fight what we think is some petty vendetta against a
company, we made him that offer and then I told the solicitors not
to fight it anymore.
Magee: Why did you not carry on with the
case? I mean, surely, if you do not carry on with the case it is
bound to go against you?
Smith: I do not know, maybe that was my
mistake. I mean I am not a legal guy, I am a technical guy. I do
not know. I really do not know.
Magee: Was it not your decision not to
carry on with the case?
Smith: It was my decision not to use the
solicitors to carry on with the case because it was just getting
out of hand.
The controversy does not stop there, though. Dick has not yet
received payment of the damages and costs, but Smith said that that
is because he has not had notice that he must pay. But Dick says he
has proof that the Sheriff Court's Note of Extract for Payment,
which is the document which orders the damages of £750 and costs of
£618 to be paid, was signed for at Transcom's offices.
Smith: We actually have not received a judgment
from the Court. We have just received notification that a decision
has been made.
Magee: Okay.
Smith: But we actually have not been asked to
pay anything. We got a letter from the Sheriff Court to say – it
did not actually say who had won, it just advised us that here was
an X amount of money and here was what the total value was. It did
not say you must pay it, it was just advice from the Court.
Over a year after it was sent a single email that made for a
landmark ruling is still the source of a controversy that looks to
be far from finished yet.
That's all we have time for this week, thanks for listening.
Why not get in touch with Out-Law Radio? Do you have a legal
problem you would like us to discuss on air? Do you know of a
technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
Out-Law Radio was produced and presented by Matthew
Magee for International Law Firm Pinsent Masons.
