Sky News Producer and Data Directive litigation Troll Roddy Mansfield has apparently won his 3rd “victory” against a brand – in this case John Lewis, who (soft) opted-him-in for marketing by using a pre-ticked consent box after he had registered his details with John Lewis’ website.
This was breathlessly reported on Sky News as “Spammer To Pay Damages After Court Victory,” Roddy – the spam troll argued that “an opportunity to opt-out that is not taken is simply that. It does not convert to automatic consent” Well he would know that! Given his track record one would think he more than anyone else in the UK would know what that pre-checked box meant.
The irony of it all is Sky his own employers operate an enforced opt-in policy which means anyone who registers for a Sky ID is automatically put on their mailing list whether they want it or not and the only way to prevent that happening is to tick a box and actively opt-out. Interestingly they do it the opposite way to John Lewis and most brands as you can see below and their approach is as good an example of psychological sleight of hand as you are likely to see. To add insult to injury Sky would seem to be opting you into receiving 3rd party offers from brands you may not actually ever want to hear from, something John Lewis do not.
One of the challenges with the 2003 EU Directive is that it is open to interpretation and as such many Experts, Brands and even Countries apply it in different ways. I have no doubt that Sky’s lawyers are pretty certain that their interpretation stands muster, but I know many brands and commentators who would not feel uncomfortable with their approach and might argue that consent for 3rd party mailings should not or cannot be via opt-out. Most websites require registrants to explicitly opt-in to receive 3rd party mailings.
So what does this mean to those of you out there who concerned by this ruling? My understanding is that County Courts have no power to set legal precedent and as such you are free to use a pre-checked box, particularly as it is one of the most widely accepted interpretations of the Directive. My guess is that John Lewis could have appealed and most likely succeeded, but decided it would be cheaper to pay up and move on. Which is precisely why it is so difficult to stop litigation trolls using the small claims courts as a handy way to top up their holiday fund by suing large employers and brands.
So if there are any other people like Roddy out there go register with Sky and fill your boots!