tag:blogger.com,1999:blog-3993498847203183398.post7760100145623904697..comments2024-03-29T11:00:39.953+00:00Comments on RevK<sup>®</sup>'s ramblings: When is junk mail not junk mail?RevKhttp://www.blogger.com/profile/12369263214193333422noreply@blogger.comBlogger35125tag:blogger.com,1999:blog-3993498847203183398.post-55553591672135204732015-02-12T22:47:23.123+00:002015-02-12T22:47:23.123+00:00I did manage to get a case in front of a judge aga...I did manage to get a case in front of a judge against communicado/bitesize seminars. <br />He refused to consider the regulations on individual subscribers at all as he saw no quantifiable damages. <br />He also had no idea about the regulation in question so had to be shown a laptop looking at the legislation. <br />http://www.doesnotcompute.co.uk/blog/case-dismissedDeannahttps://www.blogger.com/profile/00039168200475889026noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-70862631881175241062015-02-12T21:31:27.895+00:002015-02-12T21:31:27.895+00:00It seems that Ofcom does consider email to be an &...It seems that Ofcom does consider email to be an "enhanced" (classificatory, not legislatively relevant) electronic communications service: http://stakeholders.ofcom.org.uk/binaries/consultations/designation/statement/guidelines.pdf<br /><br />It seems that Ofcom is not alone in this. See Table 1 on page 16 of https://www.pts.se/upload/Rapporter/Internet/2009/services-e-com-act-2009-12.pdf<br /><br />This does not seem quite right to me, though, as I am struggling to see a technical difference between an email server and a web server, such that they should be treated differently.Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-83896423086373643902015-02-12T09:14:56.757+00:002015-02-12T09:14:56.757+00:00> to claim money you can show you are already e...> to claim money you can show you are already entitled to<br /><br />Yes: to claim damages, which the spammer has declined to pay voluntarily, in respect of the harm you have suffered by virtue of their contravention of PECR.<br /><br />> a previous court resolution that has gone unpaid<br /><br />I am not sure that going to court to get a judgment about a unpaid some from a previous judgment — I should have thought that this would be more a matter for baliffs?Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-88635521763232765602015-02-12T08:41:24.124+00:002015-02-12T08:41:24.124+00:00Well, if I am making a claim for damages and they ...Well, if I am making a claim for damages and they are not paying, that is surely a "dispute"? I have been careful with the Notice before Action to include everything needed, even an offer to negotiate. But Moneyclaim have always been happy to accept these claims, and it is simply a front end for the normal court process as I understand it.<br /><br />Your claim on moneyclaim is reviewed before it is accepted, it seems (takes about a day).RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-53564742160411723312015-02-12T08:30:51.075+00:002015-02-12T08:30:51.075+00:00Can you give a brief description of the claims pro...Can you give a brief description of the claims process you've gone through with spammers? Looking back through your blog, it looks like you went straight to moneyclaim.gov.uk (http://www.revk.uk/2014/12/dont-spam-me.html) after sending the notice before action, but my reading of the moneyclaim website seems to suggest that it isn't really there to settle disputes, rather to claim money you can show you are already entitled to (e.g. unpaid invoice, a previous court resolution that has gone unpaid, etc?).<br /><br />It sounds like for disputes you need to fill in an N1 claim form (http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=338).<br /><br />I'm just preparing my first court action against a persistent spammer (who has already been told to stop spamming me by the ICO, so they just started spamming me from a different company in the same group!) I'd welcome any advice.Steve Hillhttps://www.blogger.com/profile/09798286430189689578noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-85513091819170873622015-02-11T09:50:06.821+00:002015-02-11T09:50:06.821+00:00There is not, to the best of my knowledge, even on...There is not, to the best of my knowledge, even one reported case about action under Regulation 22 — my feeling is that this means that there have been relatively few lawyers engaged on it, or else that those who have have been very successful in getting things resolved before it came to court. Having advised in this field for some years, my feeling is that there are relatively few lawyers in the UK who are very familiar with the communications regulatory regime and the privacy side of things — this is one of the reasons I am keen to follow the actions people are bringing (and happy share thoughts, such as the kind of things in this thread, although I cannot formally give "legal advice").<br /><br />If you were willing to spend, I would probably suggest Graham Smith, at Bird and Bird, Stewart Room at PwC, or Andrew Katz at Moorcrofts. Stewart has more contentious privacy experience, but Graham is better known on the communications side of things. I am not aware that Andrew has particular experience in these areas, but he is one of the most geek-friendly lawyers that I know, is incredibly bright and I have a huge amount of respect for him. Do check their prices first, of course...Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-14464553873405869022015-02-11T03:31:32.031+00:002015-02-11T03:31:32.031+00:00Sadly not, I am winging it, but interesting to hea...Sadly not, I am winging it, but interesting to hear how it goes.RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-74293456258429070002015-02-10T21:20:01.219+00:002015-02-10T21:20:01.219+00:00From one Rev to another, do you actually know any ...From one Rev to another, do you actually know any legal beagles (or can you recommend any) which can assist on these matters? I suspect I've got a spammer in my sights which may result in an actual court appearance, so I'm looking to get prepared (plus I'm looking at setting up a site to help others file claims against them).Richy Bhttps://www.blogger.com/profile/11328244621821820978noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-33217028009234625462015-02-10T13:48:14.807+00:002015-02-10T13:48:14.807+00:00> Bracknell is very easy!
Sounds good.> Bracknell is very easy!<br /><br />Sounds good.Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-82151561413488205582015-02-10T13:42:41.209+00:002015-02-10T13:42:41.209+00:00Oops. 2004, not 2002:
https://apps.fcc.gov/edocs_...Oops. 2004, not 2002:<br /><br />https://apps.fcc.gov/edocs_public/attachmatch/FCC-04-27A1.pdfAnonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-82432339551025374142015-02-10T13:39:31.891+00:002015-02-10T13:39:31.891+00:00> the person contracting for the "email se...> the person contracting for the "email service" did seem to be what they were looking at<br /><br />Which, from a common sense perspective, seems pragmatic for the purposes of this legislation. But, of course, it presupposes that one can be a subscriber of an email service, which, in my view, perhaps seems questionable.<br /><br />For your broader interest (broader since it is not email and not in Europe, but still, I think, of some relevance to the discussion here), take a look at the FCC's 2002 opinion and order on pulver.com / "Free World Dialup" service: held not a telecommunications service (their equivalent of an ECS), but an unregulated information service (akin to our ISS).Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-80251113638235065052015-02-10T13:37:43.806+00:002015-02-10T13:37:43.806+00:00Ha, Bracknell is very easy! I was making assumptio...Ha, Bracknell is very easy! I was making assumptions, sorry. Ha, and yes, I don't drink beer, but I do drink other things... More than happy to have a chat some time - maybe we should invite you to Cafe Rouge in Wokingham one evening for a meal.RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-29990297173801838672015-02-10T13:35:33.835+00:002015-02-10T13:35:33.835+00:00London is do-able, Bracknell is easier (I'm ba...London is do-able, Bracknell is easier (I'm based in Newbury), so see if it takes your fancy one day.<br /><br />(Consistent with the relatively poor degree of definitional accuracy demonstrated by the legislation in this field, "beers" was a term I used loosely too, being a tee-totaller :))Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-60499271024751097522015-02-10T13:34:23.989+00:002015-02-10T13:34:23.989+00:00If any help, in discussions with ICO, the person c...If any help, in discussions with ICO, the person contracting for the "email service" did seem to be what they were looking at, but they were confused on many things (especially when my employer is an ISP anyway) so not really help there.RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-34795315633534381822015-02-10T13:33:00.799+00:002015-02-10T13:33:00.799+00:00Well, I do get in to London occasionally (LINX nex...Well, I do get in to London occasionally (LINX next week), and do drink :-) so maybe some time.RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-43619102906264800442015-02-10T13:24:14.460+00:002015-02-10T13:24:14.460+00:00> I do feel like I am trying to tease a rabbit ...> I do feel like I am trying to tease a rabbit out of a hat here :-)<br /><br />And everyone knows that the best way to do this is to make sure that the damn rabbit is well and truly in the hat before you stick your hand in to pull it out...<br /><br />If it would help / be interesting, I'm more than happy to have a chat over some beers one lunchtime / evening, with bodies of legislation to hand, as it might be easier than doing so by text!Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-22604414374247500832015-02-10T13:21:29.248+00:002015-02-10T13:21:29.248+00:00> the provision of the "Home network"...> the provision of the "Home network" consisting of switch and network cables, used to carry the email from the mail server to the PC, which seems itself to be an ECN, is an ECS... <br /><br />That seems right to me. The reason I hesitate slightly is that "ECS" is a service "normally provided for remuneration". Most people's home networking kit is not "provided for remuneration", but is operated by themselves for their own personal use. However, as with the definition of "information society service", the bit about remuneration seems to make little sense, although, possibly, it might exclude network A, which is run in my home, as opposed to network B, which is functionally identical but which is provided to me by a third party.<br /><br />> And if the public sending an email get to use that ECS to get the email to the PC, then that makes it public?<br /><br />I'm not convinced that the fact that people can send information via the Internet which your machine on your local network makes your local network a "public electronic communications services". (I am also not sure that it is desirable, for most individuals, to want to be regulated as a PECS provider? Do you want an obligation to provide ADR for your home network, for example?)<br /><br />However, does that need to be the case to make a complaint under PECR Regulation 22? <br /><br />Your home network is somehow connected to the Internet. Let's ignore the fact that you own an ISP and so have may have all manner of convolution in terms of how you get your connection at home, and use my setup instead. My computer, which connects to a home network, which connects to the Internet via my PECS provider, AAISP. Somewhere on the Internet is my mailserver, to which I can connect, to send and receive email, and to which third parties can address email to me, which the mailserver processes and puts into an account, ready for my collection.<br /><br />Leaving aside the status of my home network, I subscribe to a public electronic communications service, by virtue of paying AAISP for Internet connectivity each month. This makes me a subscriber to a PECS, and I am a subscriber in my individual capacity. <br /><br />I am still not convinced why it is relevant, for the purposes of dealing with spam, as to quite how I connect to my mail server, and you may well be able to poke holes in this, or have a reason why a different approach should be considered?Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-91662549889983361182015-02-10T13:20:17.900+00:002015-02-10T13:20:17.900+00:00I do wonder why on earth they included the whole &...I do wonder why on earth they included the whole "individual subscriber" stuff in the law - it seems to just make the whole thing not very clear cut and difficult to enforce.Steve Hillhttps://www.blogger.com/profile/09798286430189689578noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-47773883958466666072015-02-10T13:18:56.797+00:002015-02-10T13:18:56.797+00:00I am not sure "of equal value" is needed...I am not sure "of equal value" is needed, but even so "running my mail server, which kind of runs itself" is probably something of similar value to £1 a year :-) But in the general case, value is also in the eye of the beholder in many ways. Contracts are all about an enforceable promise both ways (and one way is usually, but not always, money, simply for convenience).RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-74150090764628264662015-02-10T13:16:10.210+00:002015-02-10T13:16:10.210+00:00I never did understand peppercorn payments. I tho...I never did understand peppercorn payments. I thought the contract law was basically requiring that two parties were exchanging things of equal value (which makes some sense) - a peppercorn payment is clearly not "of equal value" to the thing being received in most cases.Steve Hillhttps://www.blogger.com/profile/09798286430189689578noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-37492019324896417202015-02-10T13:07:19.066+00:002015-02-10T13:07:19.066+00:00I do feel like I am trying to tease a rabbit out o...I do feel like I am trying to tease a rabbit out of a hat here :-)RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-42855529518918742212015-02-10T13:05:41.110+00:002015-02-10T13:05:41.110+00:00> I assume you agree that a simple network swit...> I assume you agree that a simple network switch and cat5 cabling is an ECN though?<br /><br />Based on the definition of "ECN", I would say so, yes.<br /><br />(I have a view as to where you might be going with this, and will be interested to hear it!)<br /><br />'electronic communications network' means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-53232893133787668842015-02-10T13:04:14.322+00:002015-02-10T13:04:14.322+00:00OK, I think I see where you are going on that, and...OK, I think I see where you are going on that, and I can work with that :-) If the mail server and provision of email is not itself the ECS, but the provision of the ECN is an ECS, then the provision of the "Home network" consisting of switch and network cables, used to carry the email from the mail server to the PC, which seems itself to be an ECN, is an ECS... And if the public sending an email get to use that ECS to get the email to the PC, then that makes it public?RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-11989491441298509512015-02-10T13:00:14.210+00:002015-02-10T13:00:14.210+00:00I might be right, I might be wrong — I really don&...I might be right, I might be wrong — I really don't think it is clear cut.<br /><br />I completely see where you are coming from, and it certainly does not help my argument that Ofcom often says, in the broadest terms, that the framework includes the regulation of email. But fitting email into any of the definitions seems a stretch to me.<br /><br />> as a means to "convey" the signal that is an email<br /><br />At the moment, I would split it this way:<br /> - the mail server is a box somewhere on a network. It receives stuff sent to it, can process stuff, and can send stuff out; in this sense, it is just like a web server, but dealing with slightly different content and with different protocols for doing so.<br /> - the mail server is connected to to the Internet, by means of an access network (an ECN). The provision of that Internet connectivity is the provision of the electronic communications service: it is this service which carries what leaves the mail server to its destination, where it is delivered to another box which handles it.<br /><br />In terms of the particular matter at issue, it seems to me that the *intention* behind regulation 22 is clear, and that, if I were in court, and someone was trying to argue the nuances of communications law and interpretation as to why it is not actually unlawful for them to send me unsolicited marketing correspondence, I would aim to bring the discussion back up to the big picture, and encourage the judge to take a sensible, pragmatic decision: leave the nitpicking aside, and focus on what the legislation is there to do.Anonymoushttps://www.blogger.com/profile/18427000118752159232noreply@blogger.comtag:blogger.com,1999:blog-3993498847203183398.post-79037652341413014872015-02-10T12:51:41.007+00:002015-02-10T12:51:41.007+00:00I assume you agree that a simple network switch an...I assume you agree that a simple network switch and cat5 cabling is an ECN though? It meets the definition, and indeed, the definition explicitly allows a single device to be a "network".RevKhttps://www.blogger.com/profile/12369263214193333422noreply@blogger.com