Dayglo's mission to get his life back!

[un1boy]

And I'm sorry Un1boy, if I was a lender, and I could get away with it, I would want to your every payment you'd every missed for a lot longer than 6 years to help me build the best possible view of your likely future behaviour no matter how small. That way I can position my business in the best possible way to take advantage of any gaps in the market, reduce my exposure to risk as much as possible and then go and buy a yaught.

 

Lol, I know where you're coming from, I am just trying to say that the lenders don't use it for that purpose - it's just to make them more money!

 

If defaults didn't give them a right to hike up interest rates then I think very few of them would be issued to be honest!

[bradkb]

dayglo I just wanted to add a small 2pence worth, just to say this is one hell of a thread, and taken me 3 days of reading to get through it. I really do wish you the best with Voda, and hope it works out, its nuts that you got the others taken off, and Voda are digging their heals in, the money they are wasting of someones time to do this is madness - you can see some fatcat manager - "You, defend this, we will show him....." then at the end "How much time have you spent on that?" "oh... about 2 weeks..." "nuts thats more than the default was for.."

 

Keep it up guys...

[nevos]

Hi Dayglo and friends! This may be a silly question but, here we go: Is any of this mentioned in the voda contract or does it simply say this agreement is regulated by the CCA?

 

I doubt very much any ordinary Joe will know the consequences of a missed mobile payment etc..

 

Good luck with your crusade mate, I do think this is one for European Courts.

[Guest ian cognito]

It doesn't say it's regulated by the cca, therefore they don't have to comply, it does say they can change their T&C anytime so even if they were registered when you got your phone, the current T&C's would be applicable (or the ones when you cancelled your contract) - but to be honest with you, I don't know if they ever have been.

[nevos]

Hi Janq: I have read in other threads something on these lines regarding credit cards, like: they should send a new T & C with each new card etc. I still think the answer to the problem lay in the contract. Not many people know that the cell phone providors register the agreement with CRA's..

[un1boy]

Hi Janq: I have read in other threads something on these lines regarding credit cards, like: they should send a new T & C with each new card etc. I still think the answer to the problem lay in the contract. Not many people know that the cell phone providors register the agreement with CRA's..

 

It is the responsibiltiy of the consumer to read their T and C's to be honest.

 

But I would assume that if there is a clause saying they can change at any time, when they do change it would be the comapny's responsibility to send each customer a copy of the amended clauses!

 

If they haven't done that, or if they can't prove it, how can they be sure that you agree to them? Surely as well if they do change their T and C's you have to be given time to cancel the contract in case you don't agree with them?

 

Is that not an unfair term if not?!

[dayglo]

This may be a silly question but, here we go: Is any of this mentioned in the voda contract or does it simply say this agreement is regulated by the CCA?

 

I am not disputing anything contained within any of my 6 or so old contracts with Vodafone. I think the very first one that I signed said "this agreement is regulated under the CCA" or similar. But they were all subsequently replaced at upgrades etc.

 

 

Good luck with your crusade mate, I do think this is one for European Courts.

 

Thank you. I hope it is not one for the European Courts.

 

 

Don't get carried away with CCA, UTCC acts etc....

 

this is (or should be now) a straightforward failure by Vodafone to act on my S.10(1) notice within the 21 days timeframe to cease processing data that I maintain causes me substantial damages and distress and that this is unwarranted.

[nevos]

Hi, Dayglo just for interest I found this on voda T & C if it is any use at all..

 

http://www.expansys.com/i/drv/vodafone_terms.pdf

[Allyxia]

Dg I could find you POC in the attachment you sent me any chance you could forward it again.

 

Becaus eithinkyou ar right this basically should be a straightforward breach of that act.

 

And its a case of who presents their case the strongest in court - though I dont know how VF can evidence a non breach - have you had privy to the defence yet (im geting a bit lost on this thread now).

 

Apologise in adavnce for any repetition - im just trying to get this back on track, for my own sanity!!

[nevos]

The KISS theory is probably best!

 

Found this today http://www.ico.gov.uk/upload/documents/pressreleases/2006/liverpool_city_council_prosecuted_for_data_protection_offences.pdf

 

This were Liverpool Council got fined for ignoring a data request however, down the pages the IC sets out 8 rules for anyone who prcesses data information. I read earlier in this thread were it was debated if Voda were classed as data processors they obviously are in their t & c..in which case one of the 8 principles is that data should not be kept longer than necessary or be excessive. Maybe I have lost the plot im not sure?

[dayglo]

hello ally.

 

well, the PoC that I included originally were not very good. They were written at the time when we thought consent was the key and so it goes on about no permission to process data after the ending of the contract rather than the more straightforward failure to respond to the S.10(1) notice within 21 days etc....

 

VF then challenged (not suprisingly) these PoC at the court as unacceptable and 'no grounds for bringing a case' - the court then sent me letter requiring me to answer 3 questions by statement to the court.

 

I used that as an oppurtunity to improve the basis of my case and I've not heard back from the court yet as to whether or not that was acceptable. (It's been a month now). A few days later I sent a very long detailed document outlining my case in detail to both v/f and court. give me a minute and that was in here.......

 

1.0 Part 1(1) of the Data Protection Act 1998 defines Data Processing as reproduced below

“Processing” in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

© disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of the information or data;

 

2.0 Vodafone Limited (The Defendant) is processing the Claimant’s personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK

 

3.0 Section 10(1) Data Protection Act 1998 states that 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.

 

4.0 The Defendant acknowledges receipt of a notice from the Claimant dated 19th August 2006 to cease processing personal data in accordance with his rights under Section 10(1) Data Protection act

 

5.0 Section 10(1) is subject to Section 10(2) which states that

(2) Subsection (1) does not apply-

(a) In a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) In such other cases as may be prescribed by the Secretary of State by order.

 

6.0 In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7.0 Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

In the ‘Defendant’s Response to the Claimant’s Reply to the Judgement Order’ dated 27 November 2006, Section 11; the Defendant stated:

“Vodafone Limited has responded to the applicant directly and in response to his claim stating the grounds on which we consider his request unjustified and advising that we will not cease processing his personal data. Vodafone Limited has therefore complied with its obligations under Section 10(3)(b) of the DPA 1998”

8.0 Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice. The Claimant received 2 letters from the Defendant within the 21-day timeframe. These letters are contained in the documents submitted with the Allocation Questionnaire as Attachments 2 & 3

 

9.0 The first letter (attachment 2) does not comply with the requirements of Section 10(3) Data Protection Act in that it doesn’t contain any valid reasons for non-compliance with the S.10(1) notice. Instead this letter appears to contain 2 unjustified reasons for not complying with the notice.

 

10.0 The Defendant states in this letter, “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”

11.0 The defendant accepts in the same letter that the contract that was in place between the Claimant and the Defendant has ended. Any rights or obligations afforded to the Defendant from the Claimant ended at the same time as the contract ended.

12.0 There was no ‘in perpetuity’ clause or any other clause in the contract between the Claimant and the Defendant that would have allowed the Defendant to continue processing data after the contract ends.

13.0 The second reason given for not complying with the S.10(1) notice given in attachment 2 is stated as: “Under the regulations of the Parliamentary legislation, any default registered has to remain on file for six years”. The Defendant appears to have misunderstood their obligations under the Data Protection Act in this regard in that there is no such Parliamentary Legislation at all. The Defendant is unable to identify such legislation and to attempt to use such flawed reasoning for non-compliance with the S.10(1) notice is unacceptable.

14.0 The Claimant wrote back to the Defendant expressing concern about the quality and factual content contained within attachment 2 and the Claimant received a second letter from the Defendant (attachment 3) in reply. If the court accepts that this second letter may also be considered as a written reply in accordance with S.10 (3) to a notice issued under S.10 (1) then the Claimant maintains that this letter does not contain justified reasons for not complying with the notice issued under S.10 (1)

15.0 The second letter (attachment 3) contains, amongst comment on other matters 2 paragraphs that are the Defendant’s reasons for non-compliance with the S.10(1) notice and these are reproduced below.

“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.

16.0 Paragraph 2.3 appears to suggest that the Defendant claims the right to process personal data for a period of 6 years as common practice within the credit industry. Common practice does not correlate with legal right and is irrelevant within the context of a response to a notice issued under Section 10(1).

17.0 Paragraph 2.3 also states that the purpose of processing the Claimant’s data is based on the fact that the Defendant might pursue any contractual right for non-payment against the Claimant at anytime during those six years. The Defendant accepts that the Claimant does not owe any money whatsoever to the Defendant and so this does not appear to be a justified reason for not complying with the S.10 (1) Notice

18.0 Paragraph 2.4 states that “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” . This is true, however the defendant has not stated which bases apply in this particular case.

19.0 There were no further written responses from the Defendant to the Claimant within the statutory time frame of 21 days as prescribed in Section 10 (3).

20.0 In accordance with his rights under Section 10(4) the Claimant requests from the court, an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

21.0 As part of the defence submitted by the defendant on 12 October 2006 the Defendant suggests that the conditions described in Schedule 2 Paragraph 6 are met and this is a justified reason for the data processing to continue.

22.0 The Claimant maintains that the Defendant was given ample opportunity during the statutory 21-day period to give a reasons for not complying with the notice issued under Section 10 (1). Given that this reason was not presented in either of the two letters within the 21 day period and presented 54 days after the date of the S.10 (1) notice, the claimant request that the court disregard this reason as it does not comply with section S.10(3)

23.0 In the alternative and without prejudice to 22.0 above, If the court allows the defendant to submit this new reason as a justified reason for non-compliance with the S.10(1) notice, the claimant maintains that the defendant has misunderstood both Section 10(2)(b) and Schedule 2 paragraph 6.

24.0 Section 10(2) states that section (1) does not apply-

(a) In a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

25.0 For the processing of data to be compliant with the Data Protection Act, at least one of the conditions described in Schedule 2 must be met. There are 6 paragraphs each describing a different condition in schedule 2. Under S10(2)(a), if any of the conditions described in paragraphs 1 to 4 apply a notice under S.10(1) cannot be issued. Therefore in the case of all notices issued under S.10(1), the conditions described in either paragraphs 5 or 6 must, by definition be met. If this is not the case then a Data Controller is processing data unlawfully.

26.0 Given that the conditions described in Schedule 2 paragraph 5 or 6 must be met in all case of S.10(1) notices, it would seem strange if a data controller was allowed to use either of the paragraphs as justified reason for non-compliance with a S.10(1) notice. If it was allowed then it would be possible for any data controller to not comply with any S.10(1) notice by claiming such exemptions and it would be impossible for a S.10(1) notice to ever be accepted. Section 10 clearly indicates the intention of the act to allow such notices to be issued therefore the claimant maintains that the conditions described in Schedule 2 paragraph 6 are not a justified reason for non-compliance.

27.0 In the alternative and without prejudice to 26.0 above, the Claimant maintains that the conditions described in Schedule 2 paragraph 6 are not met.

28.0 Schedule 2 paragraph 6 states

“(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.”

 

29.0 The Defendant accepts that the conditions described in Schedule 2(6)(2) are not met. This leaves Schedule 2(6)(1) as the relevant entry.

30.0 The Defendant suggests that their legitimate interest exits as the processing of data is providing a benefit to the banks, consumers and administration of justice in that the processing of data via the CRAs is a way of preventing fraud, to ensure lenders engage in responsible lending practices and to ensure consumers are not over burdened with debt.

31.0 The Data Protection Act lists several principles under which the various rights and obligations of data controllers must be interpreted.

Principle 1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless -

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

Principle 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

Principle 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

Principle 4. Personal data shall be accurate and, where necessary, kept up to date.

Principle 5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

32.0 Under the principles of the Data Protection Act, the defendant must show that processing of the Claimant’s data is necessary for each of those claimed legitimate interests. Continuing to process a default is not necessary for the detection of fraud for example as they are processing the Claimant’s name and address would be sufficient for detection of fraud.

 

33.0 The Claimant maintains that his previous ability to pay during a short-lived period of financial difficulty is not an absolute determining factor of an ability to pay in the future.

 

34.0 The claimant maintains that the continued processing of personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress.

 

35.0 The claimant accepts that, during a period of financial difficulty his mobile phone was used by a member of his family, without his permission, to call ‘premium rate’ telephone services. This resulted in an unusually high telephone bill of around £385, which the claimant was unable to pay in the timescale demanded by the defendant. The contract was cancelled on 24 September 2004 and the debt was settled in full sometime before 2nd December 2004 as this is the date on which the Default notice is marked as ‘satisfied’ on the Claimants credit file.

 

36.0 As a result of the default maker that is being maintained as part of the Defendant’s processing of the Claimant’s data, substantial and disproportionate damages have been incurred.

37.0 The claimant has a mortgage with the Chelsea Building Society. This mortgage began in January 2006. As a result of the Default Notice placed on the Claimant’s credit file, he must pay a higher rate of interest on his mortgage. If the default notice were not there, the Claimant would qualify for a normal mortgage rate instead of the sub-prime rate that he currently pays. The difference between the two rates is £57.73 per month. The total difference paid since January 2006 as a result of this default notice, in respect of the Mortgage payment only is £692.76. If the default notice were to remain for six years as the defendant claims, the total penalty paid in respect of mortgage payments would be £3463.80. The claimant strongly maintains that this is a hugely disproportionate penalty in respect of a £385 default that was settled in full within 3 and half months of the default.

38.0 The existence of the default notice prevents the Claimant from obtaining everyday financial products such as a small overdraft or a cheque book. This results in embarrassment to the Claimant and his family in everyday social situations which he maintains is unwarranted.

39.0 The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act.

[Guest ian cognito]

Hi, Dayglo just for interest I found this on voda T & C if it is any use at all..

 

Good for me Nevos, thanks (sorry to hijack briefly Dayglo) do you know if this is current?

[bradkb]

The KISS theory is probably best!

 

Found this today http://www.ico.gov.uk/upload/documents/pressreleases/2006/liverpool_city_council_prosecuted_for_data_protection_offences.pdf

 

I like the bit of -

 

4. Anyone who processes personal information must comply with eight principles, which

make sure that personal information is:

• Fairly and lawfully processed

• Processed for limited purposes

• Adequate, relevant and not excessive

• Accurate and up to date

• Not kept for longer than is necessary

• Processed in line with your rights

• Secure

• Not transferred to other countries without adequate protection

[Allyxia]

Forgive me Im spinning plates until 1030.

 

DG have you had a date yet for a hearing?

[dayglo]

Forgive me Im spinning plates until 1030.

 

DG have you had a date yet for a hearing?

 

nothing yet.

 

you may or may not recall but the AQ was a real last minute rush job and I asked for 1 months stay to try to reach an out of court settlement but v/f won't play ball.

 

Then i got the questions from the court which I answered on 21st November.

 

not a dicky bird since then apart from V/F "response to my statement" and then I sent my "response to their response to my statement!!!"

 

4. Anyone who processes personal information must comply with eight principles, which

make sure that personal information is:

• Fairly and lawfully processed

• Processed for limited purposes

• Adequate, relevant and not excessive

• Accurate and up to date

• Not kept for longer than is necessary

• Processed in line with your rights

• Secure

• Not transferred to other countries without adequate protection

 

they are the 'principles' of the Act - summarised.

 

the Act goes on to explain the detail behind those statements and wht your rights actually are.

[bradkb]

they are the 'principles' of the Act - summarised.

the Act goes on to explain the detail behind those statements and wht your rights actually are.

 

Just finished reading your 39 point post above, and by god for the first time it all makes sense to me now... 71 pages, and finally the penny drops....!

[dayglo]

Just finished reading your 39 point post above, and by god for the first time it all makes sense to me now... 71 pages, and finally the penny drops....!

 

brilliant! isn't it fantastic when that happens?

 

now go spread the word.....

[bradkb]

brilliant! isn't it fantastic when that happens?

 

now go spread the word.....

 

 

Never know, perhaps when Voda read it they will think... "oh bugger... penny dropped..."

 

LOL

[Allyxia]

Ok DG I may need to speak to you about this - as im confused as to what bit you now need help with?

 

I have time, resources and somewhat bitty bit brains at your disposal - but what exactly do you want me to do?

 

It appears that you have replied to both the courts demands for extra info and vodofons defence statement, so apart from waiting for a court date, what do you need?

 

Court bundle?

 

Sorry - for asking the same thing but Im getting confused as to what you need now hon - esp as other posters keep popping up bits and bobs which may be relevant to you or intersting but not required for this part of your claim?

 

You can PM me or call!

 

 

Sorry hon Im trying me best here!

[dayglo]

you're a star you are. proper twinkly and everything.

 

unless you can see anywhere where I'm exposed (be careful) I think I'm ok for the moment, just waiting for the court to let me know if i've answered the questions ok and whether i need to formally amend my PoC or not....

[Allyxia]

Thats what I thought to be honest but what withthe sudden flurry of activity on the thread I thought Id missed something that may have happened!!!

 

No worries!!!

[nevos]

Is it cartoon book and music reveiw time again hehe....

 

JanQ: not sure if those T & C are current, sorry for the diversion.

[dayglo]

I do feel as though some tribute to Joe Barbara (one half of Hanna Barbara) is appropriate....

 

just for a little bit then (lets not go nuts!) who was your fav. HB character and why.

 

I think mine was Hong Kong Phuey

 

 

I liked the idea of a magic filing cabinet!

[sam19677]

I do feel as though some tribute to Joe Barbara (one half of Hanna Barbara) is appropriate....

 

just for a little bit then (lets not go nuts!) who was your fav. HB character and why.

 

I think mine was Hong Kong Phuey

 

 

I liked the idea of a magic filing cabinet!

 

Snap! How great was that program.

 

I have a little confession to make I have some videos of Hong Kong Phuey, that I still like watching. How sad is that!

[Guest ian cognito]

Always my favourite as a kid and probably always will be - not Tom & Jerry - Spike!!!