Help please. Dayglo v Vodafone, default removal.

[dayglo]

ok - I've read everything here and I'm afraid I'm still a little unsure about what to do next.

 

I think my best course of action is try to obtain a court order. I have tried to research how to do this and found the 'particulars of claim' for Banks who have not complied with S.A.R - (Subject Access Request) and the discussion regarding the differences between Part 7 and Part 8 claims (?)

 

Am I right to claim on an N1 form, using Part 7, with a small amount for damages to keep it in the small claim track and maybe only have to pay £30 rather than the £150 if there was no money involved?

[dayglo]

meanwhile back at Dayglo v Vodafone...

 

I received this letter today from Amanda Chandler

 

Dear Dayglo,

I acknowledge receipt of your letter dated 8 September 2006 also received by email.

As I explained in our telephone conversation subsequent to your receipt of our letter dated 23 August 2006 from one of our customer service advisors, the information provided in that letter was incorrect. The Vodafone Limited airtime agreement is not a regulated agreement under the consumer credit act 1974. I have apologised for any confusion and inconvenience caused by inaccurate information provided, and have taken this up as a training matter with our customer services team to ensure that the same inaccurate advice is not given out in future. However, the fact that you were given conflicting advice by Vodafone limited does not alter the matter of fact that the Vodafone Limited airtime agreement is not a regulated agreement under the consumer credit act 1974.

Vodafone Limited reviewed your case on receipt of your complaint, and is of the view that the default placed on your credit reference record is accurate. We would therefore advise that we have reviewed this matter in accordance with Section 12 (2) (b) of the Data Protection Act 1998 and are of the opinion that the default should remain.

Regarding your assertion that Vodafone Limited's continued processing of personal data in respect of the default placed on your credit reference record, following the termination of the airtime agreement, is in breach of provisions of the Data Protection Act1998, I would advise that this is a matter of determination for either the Information Commissioner's Office or the courts. Vodafone Limited processes personal data for this purpose in the same way that many other companies in the UK do. These processing practices have been in place and regulated first by the Data Protection Registrar, then the Data Protection Commissioner and now the Information Commissioner (hereinafter the "Data Protection Regulator") since the inception of the data protection law in the UK, and, as far as I am aware, the Data Protection Regulator has taken no enforcement action, arguing that those processing practices are unlawful or in breach of the requirements of the UK data protection law. Vodafone Limited therefore will not be complying with your notice issued in accordance with section 10 of the data protection act 1998 requesting that we cease processing your personal data in support of the default placed on your credit reference record.

I note your intention to take legal action in the event that Vodafone Limited declines to remove the default. In so far as the default was accuratly recorded, Vodafone Limited will not be taking any steps to remove the default and, for the avoidance of doubt any proceedings will be defended. The address for service of proceedings is

The Legal Department, Vodafone Limited, Baird House - Second Floor, The Connection, Newbury, Berkshire RG14 2FN.

Yours Sincerely

Amanda Chandler

Data Protection Manager.

[dayglo]

I have my N1 at the ready, I'll get hold of £150 by tomorrow and I guess I go to court.

 

Given the response today from the ICO regarding my test case here I must admit to feeling a bit less confident that I did last week.

 

Let's hope Surly has had a better day in London.

[jamesbond]

hi dayglo. from reading the letter you have received from the Information Commissioners Office, i have problems with the following point.

 

One of the conditions for processing in Schedule 2 is that the individual has given his consent to the processing.

 

now as i read it , yes you have given your consent, but you are also allowed to remove that consent, failing which you have a flawed agreement that is not equal to both parties, as in the ofts guideline booklet "unfair terms in consumer contracts regulations 1999", which clearly states "consumers being tied into a contract unfairly"

so if you take this statement from the equation everything else that is stated in your letter from the ico is of no consequence, as you are simply removing that right to disclose from them. i would suggest that you again write to the ico and ask for clarity of your position regarding you rescinding your permission from vodafones access to your data. any ideas on this front anyone?

[jamesbond]

again here on this piece.

 

Consent is not defined in the Act and so it is helpful to look back at Directive 95/46/EC which defines "the data subject's consent" as:

 

".any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed."

your consent is no longer freely given, where does that leave the position? if you give consent , are they saying that consent is for 6 years, and you are not able to withdraw that consent?

 

however you look at the letter, it is your permission that allows access to that record, nothing less.

[jamesbond]

this point is intersting.

 

The Act does not prescribe the period for which information is retained by credit reference agencies. However we understand that the Crowther Report on Consumer Credit 1971 expressed support for the view that a statutory time limit should be considered and suggested a period of six years should be adopted

 

this is a suggested period, not statute or common law, they suggested the banks should lower their penalty charges in line with the credit card companies, but they have not , because it is not the law that they have to do it. get the point across to the Information Commissioners Office, they are trying to please everyone and this business with the cras has opened a can of worms, and could potentially be the downfall of the cras and all the other bodies trying to invade our private lives with this highly abusive use of our personnal data, being available to every man who wishes to so view it. get on to them straight away and get clarification on these points, lets see the response so we all know the way forward. 007

[jimfishybob]

I don't think it will be the downfall of the CRA's, I DO think that most creditors will now begin to alter the terms and conditions of their contracts. That said, even if they do, the contract will still no have no effect once terminated.

 

The only thing I suppose that could change this would be a new statutory instrument being passed without parliamentry approval.

 

Sorry, just thinking aloud

[jamesbond]

i have just been reading through the following document, and it clearly states you can rescind any permission you have given a company to stop your data processing.

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/how_can_i_stop_them_processing_my_personal_information.pdf

 

this bit says it all

 

"Section 10 will not apply when:

 

•

you have given your consent to the

processing (although consent may be

withdrawn);

 

it appears we are getting conflicting advice from the ico here, and this still needs addressing with the party you spoke with at the ico. what i cant get my head around is are you trying to stop the cras from holding the data, or vodaphone from sending the data to the cras?

[dayglo]

what i cant get my head around is are you trying to stop the cras from holding the data, or vodaphone from sending the data to the cras?

 

I am trying to remove two defaults from my credit file that have been paid in full.

 

Both the CRAs and the suppliers (in this case Natwest & Vodafone) are refusing to remove them and the CRAs are claiming 'their hands are tied'

 

so, I'm going after them on two fronts - 1) via the CRAs = 3 times the efforts a nd 2) via Natwest & Vodafone directly = 2 times the effort.

[mbeaman]

Hi there, I'm trying to remove a default notice by Vodafone. I've sent couple of letters but had no reply so far. Could you let know what address did you send your letters to?

 

Many thanks

[wicket]

Certainly the letter from the Information Commissioners Office is not very supportive. However it is intersting to note that the majority of comments are "views" and not fact. I don't think you should be put off your case. I would like to know the expertise and level of the author of the letter and what legal advice they have sought in compiling and interpreting etc.

 

I think Surly's blow by blow explanation in his letter still stand though on each clause in Schedule 2. I think though your approach through Vodafone is the right one - if you can stop Vodafone providing your data, the CRAs will be obliged to remove the data as they have no legitimate right to have the data.

 

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.

 

This though does require some careful thought and interpretation - something I think Information Commissioners Office are struggling coming to terms with. In it's broadest sense does this entitle anyone in business to share information with others in business so that they can cary out their business - in which case this could be arugues for virtually any business to business sharing. I'm pretty confident that that is not what the act is implying or there for. Any views?

 

Is the Information Commissioners Office saying that as long as one of the clauses is satisfied then business can do what they want with your data?

[wicket]

Just a further thought - I think I'm confusing myself:

 

If pursuing a request to stop the data being disclosed under s10 - distress etc and that the company can continue to disclose information on the basis that if any of the conditions at Sch2 paras 1-4 are met (which they won't be able to prove assuming consent is withdrawn and contract cancelled as Surly points out). What is the purpose of Para 6 in sch2?? - does this override the previous paras? :confused: :?

[jamesbond]

i feel i must agree with the above posts, i think a strongly worded letter to the Information Commissioners office asking for a thorough explanation of their letter and clarification of all the above points would be my next approach and clearly out line you wish to know the answers as a matter of law, not their beliefs, as you wish to take this matter up in a court of law.

[dayglo]

Is the Information Commissioners Office saying that as long as one of the clauses is satisfied then business can do what they want with your data?

 

yes they are.

[wicket]

So depending on how you interpret para 6 this then becomes the get out clause?? Certainly they can't disclose under paras 1-5 as none of these are satisfied

[dayglo]

Yes, in a nutshell the Information Commissioners Office are saying that under section 6 "they have a legitimate interest"

[Tinkerbelle]

Yes, in a nutshell the Information Commissioners Office are saying that under section 6 "they have a legitimate interest"

 

Absolute nonsense

In who's interest? Certainly not ours!!

 

If the CRA's and who ever else is interested in making sure that people don't fall into debt, what they need to do is scrap these so called "defaults" and just issue CCJ's, where they actually have a legal right to start quoting chapter and verse.

 

I'm sure that if people knew they were more likely to end up with a CCJ that can't be removed for 6 years, they would think twice about how their money is managed. They also need to put in place procedures that separate debt dodgers and people who get into genuine financial difficulty through no fault of their own.. e.g. job loss, divorce, crooked accountant etc.. Just MHO.

[dayglo]

If the CRA's and who ever else is interested in making sure that people don't fall into debt, what they need to do is scrap these so called "defaults" and just issue CCJ's,

 

If any of us start winning these, I bet that is exactly what will happen

[wicket]

This makes me boggle!!

 

It seems from all the arguments so far paras 1-5 are pretty much tapped off in our favour (assuming permission withdrawn etc) just leaving the interpretation of para 6.

 

If the Information Commissioners Office is to believed then anyone who has a legitimate use of the data can obtain and use it - eg a debt collector could obtain information from banks of individuals in arrears to buy the debts and collect them. I'm 100% sure that is not right and is not intended by the Data Protection Act - you could make a legitimate case out of virtually anything.

 

However, the DPA is about processing data. Can it be interpreted that the CRAs (the third party mentioned in para 6) are processing the data on behalf of the data controller - ie retaining a credit history and this is the reason for para 6. Or they pass a debt to another agency - they pass data to them as well (something you would not have given permission to). They could not pass the data under paras 1-5 (unless you gave them permission to do so - unlikely & there is no contract once defaulted so para 2 out as well) leaving the only option para 6

 

However as soon as you request the cessation of the data processing - processing must stop (enforced through the courts) and the processing through a third party must also stop. Surely para 6 only extends the processing of data into third parties - it doesn't transfer ownership of the data. The data is still that of the original data controller.

 

I don't think I'm making this 100% clear - can anyone else expand/clarify? Am I on the right track?:-|

[pford]

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.

The red txt sums this up for me I get a default settle it. Then where are my rights and freedoms or legitimate interests of the data subject. Contract has finished so what right do they hold to screw my life up for the next six years on settled defaults.

[wicket]

Yep - got it! So regardless of any interpretation of the first half of 6 (1) it's exception ie "legitimate interests of the data subject" cancels it out so disclosure cannot be made.

 

As you say, contract cancelled (whichever way you slice it) therefore they cannot be acting in my best interest. Like it!

[dayglo]

all you have to do is persuade them that you are right in front of a judge! easy peasy eh?

[pford]

will soon find out HFC times up on SB template letter tomorrow.

[wicket]

Easy??!!! I've been trawling through google trying to find something similar which expalins/tests these principles but no joy yet!

 

I've got potentially 3 to take to court hence my interest and keen to understand the principles to save myself looking a Piers Morgan in front of his rt hon:oops:

[dayglo]

sorry raycrane my 'easy' comment was meant with tongue firmly wedged in cheek. This is one of those tasks that cannot be filed in the 'easy to do' cabinet.