It's 9am. You open your email client and wade through the usual pile of spam that's dropped in overnight. It's boring and tiresome. But what if you could earn yourself a few hundred quid and kill the spam off as well?
In a landmark court hearing last week, Sky News producer Roddy Mansfield won unspecified damages from retail behemoth John Lewis after the company sent him marketing emails without his consent.
Mansfield represented himself at his local county court, having filed his claim using an off-the-shelf template. Despite being faced down by John Lewis' legal team he still won his case – and that victory could have huge implications for consumers fed up of being bombarded with spam.
The key to Mansfield's victory was Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003. This states:
Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
The exceptions include a situation where an organisation “has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient.”
Mansfield successfully argued in court that John Lewis hadn't met any of those conditions, and also argued that John Lewis had broken the Information Commissioner's guidance on email marketing (PDF, 45 pages). This states that “best practice [for marketers harvesting email addresses] is to provide an unticked opt-in box, and invite the person to confirm their agreement by ticking.”
The killer paragraph, number 71, of the ICO guidance reads thus: “The fact that someone has failed to object or opt out only means that they have not objected. It does not automatically mean that they have consented.”
Mansfield filed his court case after browsing the website of Waitrose – the food retail arm of the John Lewis partnership – to check the price of a home delivery. Waitrose's website demands all potential customers supply an email address before it allows access to the home delivery finder. Crucially, Mansfield browsed away from Waitrose's website without buying anything.
Shortly afterwards his inbox began filling up with emails from John Lewis offering him clothes and “back to school” items for children, neither of which had any relevance to home-delivered groceries.
Mansfield said: "John Lewis argued that because I had not opted out of receiving their emails, I had automatically opted in. But an opportunity to opt out that is not taken is simply that. It does not convert to automatic consent under the law. John Lewis' lawyers then argued that because I browsed their website I had 'negotiated' with them for a sale and a business relationship existed between us which would allow them to email me.
“The judge threw that out too,” he added.
A John Lewis spokeswoman said: "Mr Mansfield voluntarily gave us his email address, set up an account online and chose not to opt out of marketing communications when that option was available to him. This case was a very specific set of circumstances and in this instance whilst we do not agree with the decision, we will abide by it. We apologise to Mr Mansfield that he was inconvenienced by our emails."
Register readers considering taking unsolicited email spammers to court might want to read about Steve Higgins, who used the same method to earn £1,750 from various companies which refused to stop sending him unsolicited email. ®
Mansfield's court victory hasn't gone down well with the spam industry. In a bizarre post on what appears to be the official blog of the Direct Marketing Association's Email Marketing Council, one Dela Quist, who appears to be the CEO of a "digital marketing agency with a 100% focus on email", labels him a “Data Directive litigation troll”.
Sadly the DMA's own website appears to be dead. Perhaps an angry recipient DDoS'd them out of existence?