OUT-LAW has seen the Sheriff Court's note of Extract for Payment
ordering Transcom to pay Dick damages of £750 plus 8% interest
since May 2006 plus £618.66 expenses – though the two parties are
still in dispute over how the case was conducted and its
outcome.
Transcom director William Smith told OUT-LAW that his firm has
not received any official notice of a judgment. Dick says that he
has proof that the notice was received and signed for by
Transcom.
The case involves a single email sent by Transcom and received
by Dick. Both Dick and Transcom were signed up to an email group
operated by UK domain name registry Nominet, though Transcom's
Smith said that his company was placed on the list without its
authorisation and was later removed with an apology from
Nominet.
Dick alleges that Transcom 'harvested' that list's addresses for
spam.
Smith said that the email to Dick went out as part of its normal
marketing activities. "Every year we send out a mail with our
special offer to customers and to people who have contacted the
business about our services," said Smith. "In all the years we have
done that we have only had one complaint, and that was from Gordon
Dick."
Smith claims that the way the Nominet group was set up meant
that a message sent to the group was received by its members
directly and not via an email list address. This meant that Dick's
address was in its files as someone who had contacted the company,
which is why he received the mail, said Smith.
"The mail has everything it should, a button saying unsubscribe,
it says if you do not want to receive this let us know, everything,
but Mr Dick didn't do any of that," said Smith.
Dick took action against Transcom in Edinburgh Sheriff Court
alleging breach of the Data Protection Act and the Privacy and
Electronic Communications Regulations regarding the sending of
unsolicited commercial email.
The Data Protection Act would cover the unlawful obtaining of an
email address and allows a person to sue for compensation for
damage and distress. The Privacy and Electronic Communications
Regulations allow a person who has suffered damage as a result of a
failure to comply with its anti-spam provisions to sue for
compensation for that damage. Dick sued for £750, the maximum sum
that can be claimed under Scotland's small claims court
procedure.
Dick is an electronic marketing specialist and a non-executive
director of Nominet, while Transcom is an ISP specialising in
satellite communications and military customers.
The only previous case of an individual winning a court action
over spam in the UK is that of Nigel Roberts, who sued Media
Logistics UK in 2005 and obtained a £300 out of court settlement
from it.
Transcom was initially bullish about its prospects. "When we got
his demands we had a good laugh. Our solicitors had never heard of
this happening," said Smith.
"When I contacted them they told me to sue them. So I did. And I
won," said Dick. "They tried to argue to belittle the impact
that an email can have, but the Sheriff was having none of it."
"I pursued the largest amount available in a small claims case
because the Sheriff Court has made judgments before saying that the
award of damages should not be so little that it belittles the
policy behind the law," said Dick.
Later in proceedings Transcom offered Dick a settlement which
included the £750 damages and just over £100 of expenses. The two
parties differ on what happened next.
Dick says that he accepted the offer and a court date was moved
to accommodate its payment, but that payment was not forthcoming.
Smith says that he believes Dick did not accept the offer, and that
it is still available to him.
Just before a crucial December court date, Smith and Transcom
stopped contesting the case. Dick says that he received a letter
from Transcom's solicitors saying that they were no longer going to
represent Transcom because they had not received instructions on
how to proceed. Smith says that he and his solicitors decided
not to proceed for economic reasons.
The case was argued in Transcom's absence and the Sheriff Court
found for Dick.
Smith said that he had not received official communication from
the Sheriff Court. "All I have had is increasingly nasty letters
from Mr Dick," he said.
Dick said he is glad he took the case, which he pursued because
the laws against unsolicited commercial email exist and should be
upheld. "Obviously people are not doing anything about this law. I
think it would be good if this became like the bank charges, if
people made spammers pay then it would help to stop them," he
said.
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