Help please. Dayglo v Vodafone, default removal.

[dayglo]

Here is a copy of Vodafone's reply to my letter (using Surly's excellent templates!) to Vodafone

 

 

Thank you for your Letter dated 19th August, regarding data registered on your credit files by Vodafone.

 

The contract you signed, when you connected to the Vodafone network, was and is covered by the 1974 Consumer Credit Act.

 

Section 10.c of the contract advises you that detail of your contract with us, payments made, account balances, disputes, debt and defaults will be passed to Credit Reference Agencies. As you were signatory to the contract, you are covered by it’s terms.

 

Under the regulations of the Parliamentary legislation, any default registered has to remain on file for six years.

 

You are entitled under the auspices of the Data Protection Act, to request incorrect information to be removed from your credit file. The information that Vodafone registered, in relation to your account with us, is not incorrect and is a true reflection of your payment history.

 

Your account was sent to a Debt Collection Agency after being cancelled for non-payment. Once you had made payment to the agency, your credit file was amended to show the debt was settled.

 

Vodafone will not alter your credit file to remove reference of your account with us, as we are fully complying with the regulations of the Data Protection Act and the 1974 Consumer Credit Act.

 

Yours sincerely

 

 

 

Maureen P King

Customer Relations Specialist

 

 

Now I realise that they are basically saying two things.

 

1) I signed a contract that allows them to share my data therefore they can.

But they say in the same letter that the contract/account has ended, therefore in the absence of any perpetuity clause, so does my permission for them to process my data.

2) There is Parliamentary Legislation that says that defaults HAVE to remain on my file for 6 years.

Oh yeah? I’d like to see it then please. Am I correct to assume no such legislation exists and that the best they could come up with is the ‘code of practice’ stuff? Also, maybe they are confusing defaults with court executed items such as Bankruptcy orders, CCJs and voluntary arrangements?

 

Given the above, what is my best course of action from here?

 

1) Do I reply to this letter pointing out the items I’ve mentioned – are there any more I should use?

2) Should I report them to either Information Commissioners Office or is there some form of court order I can apply for?

 

Any help out there?

Thanks, Dayglo.

[dayglo]

I intend to send this letter via registered post in the morning... any thoughts?

 

Maureen P King

Vodafone

Vodafone House, The Connection

Newbury

RG14 2FN

 

 

 

RE: Vodafone Mobile Number xxxxxxxx

 

 

 

Dear Ms. King,

 

Thank you very much for your letter dated 23rd August 2006 ref: C1962522.

 

You appear to be rejecting my Statutory Notice under Sections 10 & 12 of the Data Protection Act 1998 for two reasons.

 

1) “Section 10.c of the contract advises you that detail of your contract with us, payments made, account balances, disputes, debt and defaults will be passed to Credit Reference Agencies. As you were signatory to the contract, you are covered by it’s terms”

 

As I explained in my first letter and you accept in your letter, the contract we had between us has ended. Once the contract that allowed you to pass data to Credit Reference Agencies has ended, so did my permission to allow you to continue to pass on the data.

 

There was no ‘in perpetuity’ clause in the contract between us that would have allowed you to continue to process my data after our contract ends.

 

Therefore I do not accept this point as a valid reason for claiming an exemption from my Statutory Notice to cease processing my data to credit reference agencies without my express permission.

 

2) “Under the regulations of the Parliamentary legislation, any default registered has to remain on file for six years”

 

Please state the actual Section of Statutory Law that allows you to bypass the Data Protection Act, because it is NOT in the Consumer Credit Act 1974 (As Amended). I suspect you may be confusing Default Notices with Court Executed items such as CCJs, Bankruptcy Orders and Court Ordered Voluntary Agreements. Unless you can state the actual Section of Law that allows you to bypass the Data Protection Act I cannot accept this claim for exemption from my Statutory Notice.

 

You have the remaining time from my first letter of 19th August 2006 to accept my Statutory Notice and remove the default notice from my credit file otherwise you leave me with no choice but to pass the matter to the Information Commissioner’s Office and to the courts to enable me to obtain a judgment against you. I’m sure I need not remind you of the seriousness of a breach of the Data Protection Act.

 

In addition, during my preparation for issuing my notice, I discovered that I did not receive either the original default notice at the time you claim it was issued or any deed of assignment as the debt was passed to the Debt Collection Agency. Therefore, under my rights contained within s78 (1) Consumer Credit Act 1974 (s.77 (1)) you must supply me with:

 

1) A true copy of the alleged agreement you refer to in your letter of 23rd August. Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee.

 

2) A signed true and certified copy of the original default notice

 

3) The deed of assignment as the debt was passed to the debt collection agency.

 

If you are unable to supply this data then I must insist, further to my Statutory Notice already issued, that you remove the default notice from my credit file.

 

Regards,

 

Enc: £1 postal order

 

[dayglo]

help please!!! this letter arrived today - I can see somethings that I can go after but I would appreciate some ideas and thoughts from the collective!

 

 

Dear Dayglo,

 

Request for removal of default under section 10 of the data protection act 1998 and related requests.

 

Thank you for your letter and enclosures of 19 August 2006. I am sorry for the delay in responding, but unfortunately you addressed your correspondence to our general correspondence unit. This means that it went into our general systems for administrating correspondence rather than coming to me directly so this matter could be addressed immediately.

 

You have raised a number of requests and issues in your letters and enclosures and I would like to address them in turn.

 

1. Regarding your assertion that the airtime agreements that you entered into with Vodafone Limited are covered by the consumer credit act 1974 – I have checked with our legal department and they advise that the Vodafone airtime agreement is not a regulated product as defined by that act. Vodafone Limited is not obliged to provide the information that you have requested in your letter of 19 August nor is Vodafone Limited obliged to comply with the timeframes that you have stated

 

2. Regarding your assertions that Vodafone Limited is in breach of the Third Fourth and Fifth Data Protection Principle, I am afraid that there appears to have been a misunderstanding about the proper interpretation of these requirements and how the apply in respect of the credit providing and credit reference industry. I would advise as follows

 

2.1. You have asserted that the details placed on your credit reference records are inaccurate. I understand that you have already made this complaint to Vodafone Limited and that this claim has been investigated. I understand that as a result of those investigations, you have previously been advised that Vodafone Limited therefore does not accept that the record of your default is inaccurate

 

2.2. Regarding your assertion that the airtime agreement only amounted to your consent to process your personal data for the lifetime of your contract – I would advise as follows: the standard data protection clause makes it clear that personal information about your payment or otherwise of the account will be shared with credit reference agencies and may be used for debt collecting etc purposes. As stated in 2.1 the information provided on a monthly basis is an accurate reflection of the state of your account. The data protection clause quite clearly states that we may pass information about outstanding debts to the credit reference agencies to the credit providing industry and is based on guidance provided by the Information Commissioner, who, in turn, is responsible for providing guidance on compliance with the data protection act 1998. It would seem somewhat strange if the regulator for data protection compliance provided guidance on what the contractual clause should contain, but failed to mention the fact that it needed to include wording on retention.

 

2.3. The fact that a record of a default is retained on the credit reference records for six years is a matter of policy for the credit providing and credit reference industry; a policy which I believe has been agreed with the Office of the Information Commissioner. I understand that this is based on the statute of limitations, which states that any breach of contract, such as failure to pay, may be pursued legally at any time in the six years from the time of the breach. The defaults on your credit reference record therefore indicate the date at which the six year period under the statute of limitations begins to run hence the fact the credit reference industry will retain for six years from that date. It is therefore not an arbitrary decision on the part of Vodafone Ltd to retain your personal information for six years but in fact a decision based on the fact that we might pursue our contractual rights for non-payment against you at anytime during that six years.

 

2.4. finally, your letter appears to assert that the only legitimate basis that a data controller, such as Vodafone Ltd, has for processing personal data is the consent of the data subject. I would advise that in fact consent is not the only basis on which personal data may be processed. Schedule 2 of the data protection act 1998 sets out other bases in law, which may be used to justify the processing of personal data without the consent of the data subject. As I understand it, the information commissioner’s office has long recognized the importance that the credit reference industry plays in the commercial not just of the economy and business, but also for consumers. Many of the rules and practices of the industry, such as standard contractual clauses and retention, have therefore been developed in discussion with the information commissioner’s office to ensure the right balance between the interests of the credit industry and the rights of the individuals are met.

 

In conclusion therefore Vodafone Ltd does not accept that it is in breach of any of the requirements of the data protection act 1998, and for the reasons stated above will not be complying with your request to cease processing under section 10 of the data protection act 1998. If you wish to refer this matter to the information commissioner’s office, we would be happy to assist them with their enquiries. If you wish to refer this matter to the courts, Vodafone Ltd will defend any such claims.

 

Yours Sincerely,

 

Amanda Chandler

 

Data Protection Manager

[email protected]

 

[dayglo]

note: the first letter from Maureen King says

 

The contract you signed, when you connected to the Vodafone network, was and is covered by the 1974 Consumer Credit Act.

 

whereas the next letter from Amanda Chandler says

Regarding your assertion that the airtime agreements that you entered into with Vodafone Limited are covered by the consumer credit act 1974 – I have checked with our legal department and they advise that the Vodafone airtime agreement is not a regulated product as defined by that act. Vodafone Limited is not obliged to provide the information that you have requested in your letter of 19 August nor is Vodafone Limited obliged to comply with the timeframes that you have stated

[aardvark the lecturer]

Wow.....:o

 

The first letter was clearly a bit of a blag to see if by using lot's of big words and statements you would go away!

 

Seems that Amanda Chandler has a bit more clought and responsibility, of course.... that doesn't necesserily mean that she isn't trying the same thing!

 

2.1. You have asserted that the details placed on your credit reference records are inaccurate. I understand that you have already made this complaint to Vodafone Limited and that this claim has been investigated. I understand that as a result of those investigations, you have previously been advised that Vodafone Limited therefore does not accept that the record of your default is inaccurate

I didn't see your original letter but I don't recall seeing anything in the subsequent correspondence that implied any such innacuracys, simply that you wish them to stop processing the data as you felt they have no right to do so.

The data protection clause quite clearly states that we may pass information about outstanding debts to the credit reference agencies to the credit providing industry and is based on guidance provided by the Information Commissioner

 

Hang on, if the debt has been settled and they have accepted a full and final settlement, then surely there is no outstanding debt to be still reporting on....

and,

The fact that a record of a default is retained on the credit reference records for six years is a matter of policy for the credit providing and credit reference industry; a policy which I believe has been agreed with the Office of the Information Commissioner. I understand that this is based on the statute of limitations, which states that any breach of contract, such as failure to pay, may be pursued legally at any time in the six years from the time of the breach. The defaults on your credit reference record therefore indicate the date at which the six year period under the statute of limitations begins to run hence the fact the credit reference industry will retain for six years from that date. It is therefore not an arbitrary decision on the part of Vodafone Ltd to retain your personal information for six years but in fact a decision based on the fact that we might pursue our contractual rights for non-payment against you at anytime during that six years.

You can believe all you like but that doesn't make it true.. I firmly like to beleive that I'm the worlds greatest lover......

and, if a full and final payment has been accepted, then on what grounds can they pursue any contractual rights?

 

AND while I think about it, the records do not need to be held or processed via a credit reference agency for them to take any action anyway as their own records would allow them to do this anyway

 

 

I have to say that these are just my musings and not based on experience or in depth knowledge, but something just dosen't ring right for me.

 

I'd have wanted to reply to this bit...

 

The data protection clause quite clearly states that we may pass information about outstanding debts to the credit reference agencies to the credit providing industry and is based on guidance provided by the Information Commissioner, who, in turn, is responsible for providing guidance on compliance with the data protection act 1998. It would seem somewhat strange if the regulator for data protection compliance provided guidance on what the contractual clause should contain, but failed to mention the fact that it needed to include wording on retention.

 

with something like this...

I recognise and concurr that the data protection clause that you use does indeed allow you to pass on information about outstanding debts, however as my debt is no longer outstanding I do not see the relevence in this current context. Furthermore, the data protection clause you use may well have been structured around the needs of your business, The Data Protection Act was not, and nor does the regulator work soley on your own behalf.

Good Luck dayglo, I don't envy your situation, but I admire you're resilliance!!

 

 

[david.m]

the man needs help , that letter even gave me the shivers,were are the top posters/people here, to take this letter out line by line so everyone reading can benefit?, help him please..................

[aardvark the lecturer]

the man needs help

 

That seems a bit harsh???

 

lol.......only kidding

[dayglo]

david.m is right though - i DO need help (smile), and before any advises me to read the 'default hell' thread - believe me, I have read it, printed it, bound it, framed it, memorised it and trying to buy the rights to film it!

[jamesbond]

this does require some addressing as they are blantantly refusing to amend posted details as requested by the data owner. the defence as i see you are trying to use is that you have no agreement with them to disclose your data and they are saying they have these rights? has the information officer been contacted for any guidance on this matter? as i feel that this point needs to go forward with some solid advice which we may refer to, to be beneficial to everyone who is faced with this dilemma to be able to act accordingly...these are certainly very valid points that are being raised from both parties and perhaps this needs some input from the mods on how to proceed?.

[jamesbond]

perhaps you could quote the following snippet reproduced from the data protection act?

 

Right to prevent processing likely to cause damage or distress. 10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

as you have no debt to vodafone it follows logically that as they alledgedly have applied data to your file which will no doubt result in unsuccessful credit applications, this will cause distress to you, and as you have no debt to them, that distress caused would logically be unwarranted...? worth a look ?

007

[aardvark the lecturer]

Like it,

been looking through the DPA tonight, heres a link to the whole act.

 

Data Protection Act 1998

 

It makes long reading though...

[pford]

and thanks to Tinkerbelle another bit of info here Data Protection Act (1998) Legal Guidance by the Information Commissioner don't know where tink gets the time to find all the info for us to read.

 

 

hehe so it did god knows how that happened fixed it now

[aardvark the lecturer]

Hi pford,

it may just be me but your link takes me straight back to the main forum?????

 

I've spoken to dayglo tonight (friend of mine), he's on a night out, spending the money he's got back so far!!!!!! lol

[aardvark the lecturer]

Dayglo, the threads I was talking about are those of pfords and can be found as follows

 

http://www.consumeractiongroup.co.uk/forum/legalities/24962-about-experian-about-information.html

 

http://www.consumeractiongroup.co.uk/forum/legalities/27061-credit-explained.html

 

http://www.consumeractiongroup.co.uk/forum/legalities/26922-default-removal-ford-hfc.html#post219117

 

 

I advise anyone in this position or who is considering this type of action to read all these thouroughly.

 

If anyone is further ahead than this, please let us know how you are doing.

 

Surlybonds, hows your case coming??

[jamesbond]

o.k...i have been perusing the schedule 11 section of the data protection act...where the vodaphone representative clearly states she has rights to use data without your permission ...enc copy of that schedule below

 

SCHEDULE 2

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA 1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.

5. The processing is necessary-

(a) for the administration of justice,

(b) for the exercise of any functions conferred on any person by or under any enactment,

© for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or

(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

there is nothing here applicable to your case i can see

and section 6.1 clearly states that

 

" except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject ".

which as i see it any disclosure of your information to a cra predjudices your rights and freedoms and legitimate intersts, as you have no debt to them,,,you have no agreement with them,,,it is not on there under any law and it is certainly not in the publics interest???

007:)

[Tinkerbelle]

Hi pford,

it may just be me but your link takes me straight back to the main forum?????

 

Link is here. It's in this forum

[Tinkerbelle]

o.k...i have been perusing the schedule 11 section of the data protection act...where the vodaphone representative clearly states she has rights to use data without your permission ...enc copy of that schedule below

 

SCHEDULE 2

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA 1. The data subject has given his consent to the processing.

2. The processing is necessary-

• (a) for the performance of a contract to which the data subject is a party, or

• (b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.

5. The processing is necessary-

• (a) for the administration of justice,

• (b) for the exercise of any functions conferred on any person by or under any enactment,

• © for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or

• (d) for the exercise of any other functions of a public nature exercised in the public interest by any person.

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

there is nothing here applicable to your case i can see

and section 6.1 clearly states that

 

" except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject ".

 

which as i see it any disclosure of your information to a cra predjudices your rights and freedoms and legitimate intersts, as you have no debt to them,,,you have no agreement with them,,,it is not on there under any law and it is certainly not in the publics interest???

 

007:)

 

And not forgetting this from the Consumer Credit Act 1974

 

Part XII

Supplemental

 

 

General

 

174 Restrictions on disclosure of information.

 

(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.

 

It then goes on to list some exceptions none of which is a Credit Reference Agency.

 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

The full list of exceptions can be found in the Consumer Credit Act 1974 which is now in the library.

[aardvark the lecturer]

Too right, the whole "we're the information commissioners best friends" routine seems to be reciprocated by the information commissioner, see http://www.consumeractiongroup.co.uk/forum/legalities/27061-credit-explained.html

It is beginning to look like theres no point in taking the route of approaching ICO at all as they're too swamped with all the complaints, and are on the side of the banks. They have clearly forgotten that they DO NOT MAKE LAW

 

Another thread that's worth taking note of is http://www.consumeractiongroup.co.uk/forum/halifax-bank/3962-jonni2bad-halifax-off-court.html

 

This is now close to court and johnny2bad's a star and posted some great info about the defense he's putting together i.e. list of documentation he intends to refer to in court!

 

ps cheers for the link, Tink. lol

[jamesbond]

well said tinkerbell...you really are a star..

[Tinkerbelle]

well said tinkerbell...you really are a star..

 

[dayglo]

Dear all,

Thanks for all your help so far, I'll be honest - I've had a less than pleasent night out and I'm feeling a little bit cross. I'll read the posts in a bit more detail in the morning. if any of you are thinking about going to Bell Vue dogs in Manchester, keep your hard earned money and go somewhere else! bunch of arse if you ask me.

[aardvark the lecturer]

so how much ££ is left over from you're reclaimed charges so far??

[dayglo]

hmmmmmm now then, this is a complicated set of maths... let me try and figure it out, I've got back a 'promise' of £69. if you accept that thats money back, then my net overall balance based on a refund from Ikea and 1 night at the dogs, my balance is -£30 and a very angry missus. my favourite combination of saturday night fun

[aardvark the lecturer]

I guess you need to accrue some more penalties and get claiming then!!!

 

[david.m]

arr yes, Bell Vue dogs , when i was a kid me mam and dad used to like playing the dogs there, remember it well,cold,wet,and wrapping myself inside her 3/4 length coat board to tears