Legal advice: Don't be a victim of spam
By Bryony Edwards of thePublican.com's team of legal experts at London solicitors Joelson Wilson.
"Spam" affects the email inboxes of individuals and businesses alike but the position for protecting business recipients is less than clear, writes Bryony Edwards.
The protection as set out in the Privacy and Electronic Communications (EC Directive) Regulations 2003 is specifically granted to individual subscribers, while the EC Directive, on which the regulations are based, states that member states must ensure that the "legitimate interests of subscribers" are sufficiently protected. So what is the position for businesses in England and Wales? Under the regulations the definition of an individual includes a sole trader or a non-limited partnership and therefore would be extended to the employees of such businesses, while limited companies and other incorporated bodies fall within the definition of a corporate subscriber.
A subscriber is defined as the party contracting with the electronic communications services provider and therefore employees of a company would not be extended the protection granted under the regulations. This does not, however, leave employees of such businesses as exposed as at first it might appear. Under section 11 of the Data Protection Act 1998, individuals may request that the sender of electronic communications stops "processing" their personal data for the purposes of direct marketing, or in other words, stops using their details to send out spam.
This means that the data processor must cease "processing" the personal data and therefore would be prevented from sending out spam. If the sender fails to comply with such a request, the individual is entitled to apply to the Court and the Court may order the data processor to take such steps as are necessary in order to comply with the request.
Under the regulations a person who suffers damage as a result of a breach of the regulations is entitled to bring proceedings for compensation against the individual or business in breach.
A word of warning - do not expect spam to stop completely, as the EC Directive cannot prevent unsolicited electronic communications from outside the EU, where the majority of the unwanted marketing emails are normally generated.
