An individual has won a spam case in the UK for just the second time. Gordon Dick has won a damages award of £750 plus expenses against Transcom Internet Services after suing the ISP for sending him a single email. The case did not go to a full trial.
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.