The legislation covers the nuisance of junk calls and junk emails. It is illegal, a crime, to junk call me (i.e. an unsolicited marketing call) because my number is in the TPS. It is also illegal to junk mail me on any of my personal (individual subscriber) email addresses. It has been for over 10 years.
Sadly, the criminal side, the law breaking, is handled by the ICO, who rarely do swat, IMHO.
But the regulations do allow, in section 30, a civil action for damages against someone that has committed the crime. This can be very effective at causing the criminals nuisance at the very least, and in some cases costs. Enough people doing this would eventually screw up their business model.
There are problems, though, and a court case today by a customer of mine against some junk callers has highlighted some of these.
1. In the case of junk emails there is a need for the email to be that of an individual subscriber. After a lot of discussion with the ICO, they have agreed what the law says. If, for the email address, there is a contract between an ISP and their customer for that email, and their customer is an individual and not a company, it is an individual subscriber email address. It does not matter if the email is used for business purposes, has a domain owned by a business, or is clearly a work email address as long as the contract with the ISP is with an individual. This is one hurdle that should be easy to prove to a judge. We have not had that opportunity yet, but proving it to ICO and having an email from ICO confirming that, should help matters if ever we do.
2. Who broke the law? In the case of my customer there was a complex chain of parties that made calls and transferred as a qualified lead to someone else (who I would say clearly instigated such calls, but judge did not agree), and so on. In this case it is important to take all of the parties to court in one case as that means the judge can separately decide if there is a liability from which of them is liable, and could even decide they are joint and severally liable. Taking one to court can, as happened for my customer, mean that they manage to blame someone else and get off as a result.
3. What are the costs of a nuisance call or email? This really is a big issue, and is another reason my customer lost. For most people, most of the time, a single nuisance call or email is no actual cost (damages). But the constant bombardment of nuisance emails and calls is clearly a problem. I even started a petition on this. I want to make it that you don't have to justify costs for claims of up to £50.
So, the legislation is useless if we cannot show any costs. How can a junk call or email have costs? Anyone? Suggestions please? Something a judge may accept?
Well done for trying, Tim, and well done not having to pay costs for their train fares.