In the first reported case of its kind, a reluctant commercial email recipient has sued the sender and got damages as a result.
Topic: E-mail marketing
Who: Nigel Roberts and Media Logistics (UK)
Where: Colchester County Court
When: December 2005
What happened:
The first reported UK case came to light in which a digital marketing agency was sued by a recipient for unsolicited email.
The proceedings were in the Colchester County Court's small claims court and the claimant was Channel Islands businessman Nigel Roberts.
The defendant was Media Logistics (UK) a digital direct marketing agency based in Falkirk.
Mr Roberts received unsolicited e-mails from Media Logistics ("ML") promoting a car contract firm. He asked ML for an apology and damages and also asked how they had obtained his details. When they allegedly failed to reply, he took them to court. He sued under paragraph 30(1) of the Privacy and Electronic Communications (EC Directive) Regulations 2003. This states that "a person who suffers damage by reason of any contravention of [the Regulations] by any other person shall be entitled to bring proceedings for compensation from that person for that damage".
Before any hearing took place, ML settled out of court with Roberts on terms under which they paid Roberts £270 damages and £30 costs.
Why this matters:
Although the case has been reported as a victory against spam, it seems more to have been a case of inadvertent breach by a UK marketer attempting a targeted e-mail campaign for a legitimate client. According to reports, the difficulty arose because of use of a 2 years-old CD ROM of addresses obtained from a now defunct internet company. Mr Roberts had no recollection of providing his details to that organisation.
Will this case open the floodgates? We suspect not, but it is certainly a timely reminder that sending non-compliant marketing e-mails can lead to more pain than a lost client, a "complaint upheld" finding by the Advertising Standards Authority and, though much less likely on the basis of current track record, enforcement action by the Information Commissioner's Office.
Finally, it is doubtful whether the agreed settlement damages of £270 sets any benchmark for the damages that might be awarded in future similar cases is doubtful. Without a judgment, we are left without any clear indication as to how the court might assess damages if a case of this kind were to reach a hearing.
