Legal Inbound Email Terms
There are two factors relating to inbound emails to any of our email addresses at A&A.
Computer Misuse law
Basis in contract law
If you send any email to us, then your action involves your storing information on our computer systems. The very nature of email is to do that. If we do not give you permission to store information on our computer systems then you are committing a criminal offence under the Computer Misuse Act 1990 by accessing our systems without permission.
Normally it is implied that by having an email address we are letting you store information on our mail server by sending us email. However, we are hereby explicitly withdrawing that implied permission by this document. We are making this fact clear by the header given on our incoming mail server protocol exchange.
Having withdrawn that permission, we now offer a contract which gives you back permission to store your email on our server (by the action of sending us an email) and in exchange you have to agree certain things.
If you continue your protocol exchange after being sent the reference to this document then you are considered to have implicitly agreed to these terms.
- You do not require us to read or accept any general disclaimers or terms you include in your emails, unless the object of the email itself is for the purpose of agreeing a specific contract. Should you include such terms you accept that we are not bound by them.
- Unless we have a separate signed non disclosure agreement in place, you do not consider any of the content of your email to be in any way confidential. You agree to take no action against us should we disclose any of the information contained in your email to anyone.
- You agree that if your message is unsolicited commercial communication, then our costs for handling this are pre-agreed as £50 and will pay this on presentation of an invoice from us.
Fun and games
This contractual offer exists mainly as a retort to those people who think it fun, useful or even sensible to include boiler plate disclaimers in emails they send us. If you think your boiler plate terms have any legal force then so do these. We suspect these terms are not very enforceable, but will be happy to try and enforce them if you try and enforce terms against us, or send us spam.
There is a important bit of law, The Privacy and Electronic Communications (EC Directive) Regulations 2003, and in particular Section 22 and Section 30.
Basically this law makes it a criminal offence to spam individuals, except for some specific exceptions. Whilst the ICO enforce the law from a criminal point of view, the law allows civil claims for damages for breaches of the law. The exceptions are pretty simple - if someone gets the email address in the course of business (sale or negotiations), has a clear opt-out available (which was not used), and is sending further emails about related goods / services, then yes, you can send marketing emails. Otherwise it is illegal.
There are really only two complications with this, (a) that the email has to be sent to an individual subscriber, and (b) how much damages can one claim.
The subscriber is basically the person that pays for the service, and being an individual rather than a company. This means that, normally, spam to a company is not covered by this law (though it is covered by our terms and the Computer Misuse Act 1990, as above).
The grey area here is where the email ends up at an individual mailbox - e.g. the director uses a personal mailbox for everything, on his own personal domain, and emails to some of the company email addresses are transmitted to that mailbox. This is not even a redirect as such, the same mail server handles both and knows where to file those emails. So does that count?
However, to avoid this grey area, whilst the A&A domain and email are used exclusively for company use the actual person that pays for the email services on those domains, all of the email services on them for every member of staff and every group mailbox like sales, and support, and so on, is the director, personally, as an individual. The company issues an invoice every month for email services on those domains and it is paid for by an individual. So those email addresses come under the legislation directly.
The law allows anyone that suffers damages because of a breach to claim in the civil courts. The problem is, that for one email, an individual subscriber is unlikely to be able to articulate any meaningful damages. It is not clear what damages can be claimed; whether compensation for stress can be claimed, or just direct cost; whether compensation for time wasted; whether costs paid to third parties to investigate the spam; etc.
However, the law does quite clearly allow anyone suffering damages to make a claim, and A&A clearly have a lot of tangible costs resulting from spam. It costs tens of thousands of pounds to set up and maintain the spam filtering systems. So A&A could sue for damages.
There is, however, a simpler way. A&A run spam filtering. In a special contractual agreement with the director A&A has agreed to compensate the director for failure of that spam filtering system which is part of the service the director pays for. That compensation is payable, on demand, and is £50 for each spam that gets through the filtering, where spam is, in this case, unsolicited marketing emails from UK companies contrary to a The Privacy and Electronic Communications (EC Directive) Regulations 2003.
This means that A&A suffer a direct and measurable £50 in damages for such spam and can sue the spammer for those damages.
Will it work?
We have no idea - but for the cost of a county court claim, which is around £25, we are keen to find out. Do you really want to be the one we try this out on?