Dr Ian Jackson (claimant) vs **** in the Northampton County Court (Money Claim Online) DRAFT PARTICULARS OF CLAIM 4th December 2015 1. Summary 1.1.The Defendant sent, without the Claimant's consent, contrary to the Claimant's express notifications to the Defendant, and contrary to law, marketing communications to the Claimant's email address (******@fyvzl.net). 1.2.The Defendant ignored multiple notifications (made in writing by email) to stop, and only stopped when notified by paper letter. 1.3.The Defendant's primary unlawful behaviour was entirely automated. The Defendant is automatically and systematically breaching the law. 1.4.The Claimant claims: out-of-pocket costs of reinforcing the notifications by post; damages for distress; and exemplary damages. 2. Narrative 2.1.On the 18th of May 2015, the Claimant used the Defendant's website to order **** ****. During this website transaction, the Claimant indicated via the tickboxes provided for this purpose on the Defendant's website that the Claimant did not wish to receive marketing communications from the Defendant. 2.2.The Defendant properly sent the Claimant an email confirmation of the transaction to the Claimant's provided email address ******@fyvzl.net. This appears to have been done entirely automatically, as might have been expected. 2.3.The ****[order]**** was concluded successfully. 2.4.On the 24th of June, the Defendant sent the Claimant an advertisement by email. 2.5.The same day, the Claimant used a web browser to visit the provided ``unsubscribe'' link in the Defendant's advertisement. However, this was not successful: the Claimant received an error message from the Defendant's webserver. < 2.6.Accordingly, the Defendant replied, the same day, to the advertisement's provided ``From:'' address ROLE@**example.com, requiring the Defendant to no longer send the Claimant marketing communications. That email was immediately transmitted to, and accepted by, the Defendant's email server. 2.7.The Defendant sent further advertisements on the 11th of July and on the 18th of July. 2.8.On the 18th of July the Claimant sent a further email to the Defendant, at the same address. This email was Pre-Action Protocol letter, and also a notice demanding that the marketing stop, in an email headed LETTER BEFORE LEGAL ACTION. That email was again immediately transmitted to, and accepted by, the Defendant's email server. 2.9.On the 29th of July, the 1st, 12th, and 22nd of August the Defendant sent further advertisements to the claimant, all from the same address. 2.10On the 24th of August the Claimant wrote a paper Pre-Action Protocol letter to the Defendant. This was posted by 2nd class post. The Claimant demanded that the marketing communications stop; and that the Defendant pay for the Claimant's out of pocket expenses in having to send a paper letter. 2.11On the 10th of September the Defendant replied to the Claimant's paper letter, both on paper and by email (from FIRST.LAST@**example.com), saying that the marketing communications would stop. The Defendant's letter did not address the Claimant's demand for out of pocket expenses. 2.12On the 10th of September and again on the 22nd of September the Claimant sent further emails (to FIRST.LAST@**example.com; and to FIRST.LAST@**example.com and to ROLE@**example.com) to reiterate the demand for payment of out of pocket expenses. The email of the 10th of September was immediately transmitted to and accepted by the Defendant's email system. The email of the 22nd of September was delayed by problems with the Defendants's email system, but was eventually successfully transmitted and accepted on the 25th of September. 2.13The Defendant's letter of the 10th of September asserted that the Claimant had consented to marketing emails during the initial transaction. The Claimant told the Defendant in the Claimant's reply email that the Claimant has a screenshot of the relevant order confirmation page with the opt-out tickboxes ticked. 2.14The Claimant wrote again, a paper letter, on the 4th of December, in an attempt to avoid the need for litigation. 2.15The Claimant has been very irritated by the Defendant's persistent unlawful marketing communications. 3. Analysis --- Statutory damages 3.1.The Defendant's email on the 24th of June was contrary to the Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (``ECR2003''). Specifically, the Defendant has breached 22(2). The Defendant cannot use the permission granted by 22(3) because the Claimant initially refused the use of the details as contemplated by 22(3)(c). 3.2.The subsequent advertisements were contrary to the ECR2003 for the same reason. 3.3.The subsequent advertisements were also contrary to Section 11 of the Data Protection Act 1998 (``DPA''): the Claimant gave the Defendant such a notice. 3.4.As a result of the Defendant's failure to comply with the law, the Claimant had to write a letter on paper to the Defendant. The Claimant incurred out of pocket expenses in doing so. These out of pocket expenses are loss for the purposes of paragraph 13(1) of the DPA, and are damage for the purposes of Regulation 30 of the ECR2003. 3.5.These out of pocket expenses include the cost of two 2nd class stamps; the cost of two envelopes and several sheets of paper, and the cost of printing the letters using the Claimant's laserprinter. The Claimant's best estimate of the total is &2.00. 3.6.As a result of the Defendant's failure to comply with the law, the Claimant has been greatly irritated. This constitutes distress as contemplated by paragraph 13(2) of the DPA. The Claimant claims a nominal sum of &5.00 for this distress. 4. Analysis --- Exemplary damages 4.1.Regarding the Defendant's first breach --- sending advertisements despite the Claimant's opt out: All of the data processing by the Defendant in order to make that marketing was entirely automated. Therefore, this breach is systematic. 4.2.Regarding the Defendant's subsequent breaches --- failing to note emailed requests to opt out: the Defendant has ignored all emails sent by the Claimant to the email address provided on the advertisements. The Claimant believes that the Defendant systematically ignores all such emailed requests to opt out of marketing. 4.3.If the unlawful sending of advertisements was accidental, the Defendants have made no effort to investigate and rectify the cause of the problem. Instead, they have falsely told the Claimant that the Claimant consented. 4.4.The Claimant believes the Defendant is breaching the rights of many thousands of its customers in a wholesale manner. 4.5.Damages recoverable by individuals for these systematic breaches are likely to be minimal, and disproportionate to the costs of enforcement. Clearly the Defendant can expect that very few of its customers will take the Defendant to court to enforce their rights. 4.6.The Defendant's conduct is systematic and large-scale; it is calculated by the Defendant to provide profits well in excess of the recoverable damages. Exemplary damages are an appropriate response. The Claimant claims &50 in exemplary damages (a modest sum in all the circumstances). 5. Conclusion The Claimant claims: 1. Out of pocket loss (DPA 13(1), ECR2003 30) of &2.00. 2. General damages (DPA 13(2)) of &5.00. 3. Exemplary damages of &50.00. 4. Fixed Commencement Costs of &50 according to CPR 45.2 Table 1 and CPR 27.14(2)(a), at the 2/3 rate applicable to Litigants in Person (CPR 46.5(2),(3)), so &33.33. 5. The Court Fee paid by the Claimant, &25. 5