Wherever you are in the European Union it is time to
Scotch Spam!scotch:(verb) to put a definite end to; crush; stamp out.
Spam Law Summary
Your rights...Individuals have the following rights:
- 1. Not to have their personal email addressed processed or stored without consent.
- 2. Not to receive marketing email without explicit consent unless it is related to an existing relationship with the company and you have not withdrawn consent.
The Law on Spam in the UK.
Based on European Union directives.In order to prosecute spammers in the UK there are two laws that are useful:
The Data Protection Act.
Limitations on processing of personal dataThe useful parts of this act with regards to spam legal action are:
- Section 13: Compensation damages for breach of the act, and distress damages.
- Section 17: Prohibition on processing without registration.
- Schedule 1: The Data Protection Principles
- Schedule 2: Conditions Relevant for Processing of any personal data.
- processed lawfully and fairly, and schedule 2 defines what is lawful and fair. (Consent is normally required for it to be fair.)
- Appropriate measures are taken to prevent unauthorised or unlawful processing.
- Personal data should not be transferred outside of the European Economic Area without appropriate safeguards.
The Privacy and Electronic Communications Regulations.
Prohibition of Spam.The useful parts of these regulations with regards to spam legal action are:
- Section 22: Use of electronic mail for direct marketing purposes.
- Section 30: Compensation for failure to comply with requirements of the Regulations.
Under section 22 of PECR you cannot transmit, nor instigate the transmission of, unsolicited marketing material by electronic mail to an individual unless the recipient of the electronic mail has previously notified you, the sender, that he consents, for the time being, to receiving such communications. There is an exception to this rule which has been widely referred to as the soft opt in.The soft opt in allows you to send or instigate the sending of electronic mail for marketing purposes to an individual where
- 1. you have obtained the contact details of the recipient in the
course of a sale or negotiations for the sale of a product or service
to that recipient;
- 2. the direct marketing material
you are sending is in respect of your similar products and services
- 3. the recipient has been given a simple means of refusing (free of charge except for the cost of transmission) the use of his contact details for marketing purposes at the time those details were initially collected and, where he did not refuse the use of those details, at the time of each subsequent communication.
It is simple, you must have explicit consent to send marketing email or all 3 parts of the soft opt in must apply, there is no grey area.Under section 30 of the regulations damages can be claimed, it should be noted that damages are not punative in nature but restorative. That is to say they are not there to punish but to put the person that has been wronged back into the situation they were in before damage occurred. The issue of establishing damages of spam is often the trickiest part of a case but there is case law in Scotland that highlights damages should not be so low that respect for the policy of the legislation is diminished. (William Purves v Joydisc Ltd.)
Small Claims procedures.
An effective low cost court option.
Small claims procedures are ideal for this type of misdemeanour. This has the added benefit that individuals can take their own legal action without legal representation. The legal systems in the UK differ in small claims procedure and values they can award. The following table gives a rough outline but for full up to date details seek the current publications of the courts services in the jurisdiction you are interested in at the links provided.
|Legal system||Court fee||Maximum claim||Maximum Expenses*||Notes|
Claims above this maximum can not use small claims procedures.|
* The Sheriff may award higher expenses if a party has acted unreasonably in the course of the case.
|England and Wales||£30||£300||?||NB: Higher small claims can be made but the court fees vary.|
|Northern Ireland||£16||£150||?||NB: Higher small claims can be made but the court fees vary.|