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The UK has made spam a criminal offence and under the law, spammers could be fined £5,000 in a magistrates court or an unlimited penalty from a jury.
As individuals we have the following rights.
1. Not to have our personal email addresses 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email without explicit consent unless it is related to an existing relationship with the company and we have not withdrawn consent.
The Law on Spam in the UK is based on European Union directives. In order to prosecute spammers in the UK there are two laws that are useful:
1. The Data Protection Act 1998, and;
2. The Privacy and Electronic Communications Regulations 2003
These laws apply throughout the United Kingdom and have been used in anti-spam cases under both English and Scottish legal systems.
The Data Protection Act 1998 is useful against spam email and in particular the following sections;
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.
Amongst other things, the Data Protection Principles require that data is:
1. processed lawfully and fairly, and schedule 2 defines what is lawful and fair. (Consent is normally required for it to be fair.)
2. Appropriate measures are taken to prevent unauthorised or unlawful processing.
3. Personal data should not be transferred outside of the European Economic Area without appropriate safeguards.
The Privacy and Electronic Communications Regulations is perhaps of more use as this deals the sending of unsolicited direct marketing by phone, fax, email, text or any other electronic means. With regard to spam the following sections are of most use;
Section 22: Use of electronic mail for direct marketing purposes.
Section 30: Compensation for failure to comply with requirements of the Regulations.
Under s.22 of The Privacy and Electronic Communications Regulations one 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;
and
2. the direct marketing material you are sending is in respect of your similar products and services only;
and
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 s.30 of the regulations damages can be claimed, although it should be noted that damages are not punitive 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 2003.)
If you have been or are the recipient of spam emails (and note that there is a distinct difference between spamming and phishing) then begin a thread here for help on what to do and how you may be able to use the courts to put a stop to it.
As individuals we have the following rights.
1. Not to have our personal email addresses 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 we have not withdrawn consent.
The Law on Spam in the UK is based on European Union directives. In order to prosecute spammers in the UK there are two laws that are useful:
1. The Data Protection Act 1998, and;
2. The Privacy and Electronic Communications Regulations 2003
These laws apply throughout the United Kingdom and have been used in anti-spam cases under both English and Scottish legal systems.
The Data Protection Act 1998 is useful against spam email and in particular the following sections;
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.
Amongst other things, the Data Protection Principles require that data is:
1. processed lawfully and fairly, and schedule 2 defines what is lawful and fair. (Consent is normally required for it to be fair.)
2. Appropriate measures are taken to prevent unauthorised or unlawful processing.
3. Personal data should not be transferred outside of the European Economic Area without appropriate safeguards.
The Privacy and Electronic Communications Regulations is perhaps of more use as this deals the sending of unsolicited direct marketing by phone, fax, email, text or any other electronic means. With regard to spam the following sections are of most use;
Section 22: Use of electronic mail for direct marketing purposes.
Section 30: Compensation for failure to comply with requirements of the Regulations.
Under s.22 of The Privacy and Electronic Communications Regulations one 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;
and
2. the direct marketing material you are sending is in respect of your similar products and services only;
and
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 s.30 of the regulations damages can be claimed, although it should be noted that damages are not punitive 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 2003.)
If you have been or are the recipient of spam emails (and note that there is a distinct difference between spamming and phishing) then begin a thread here for help on what to do and how you may be able to use the courts to put a stop to it.
