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by | Oct 31, 2012 | Data Protection, ICO, PECR | 3 comments

Last weekend, the media was full of stories featuring Richard Herman, who has come up with the remarkable wheeze of suing a company who made cold calls to him, charging them £10 a minute if they call. If you didn’t see Mr Herman on BBC Breakfast, hear him on Radio 4’s Today programme or Moneybox, you may well have read about him in many of the papers. The most detailed coverage is in the Daily Mail, complete with endearingly naturalistic pictures of Mr Herman enjoying his success.

The tone of the stories (and many of the people tweeting about them) was universally positive. This was David marching up to Goliath and kicking him in the nads. So is there anything else to say, other than to congratulate Mr Herman for landing a blow for the rest of us?

Well, for one thing, Mr Herman didn’t really win. The Mail reports a ‘stunning victory’ where “a cold-call firm has been forced to pay compensation to a businessman after he took it to court for wasting his time”. What happened is that the firm didn’t bother to contest the case and paid up because it was probably cheaper to do so. Herman is encouraging others to follow him, but he’s got no evidence that his approach would work for anyone else. Those with long memories may remember Nigel Roberts, another aggrieved small businessman who sued for nuisance emails under PECR way back in 2006. He was equally hopeful that he would start an avalanche of private action, despite the fact that had the case been contested, the spammers might well have been able to defend themselves on the basis that they thought Roberts’ address was a business address, and the ‘damage’ suffered by Roberts was negligible, as Pinsent Masons pointed out here at the time: Faced with more than a few claims based on the Herman Method, a PPI company might well find it worthwhile to contest the £10 a minute wheeze, and then we’re back to square one.

Mr Herman does deserve congratulations for persuading so many journalists to give him so much free advertising. When interviewed on Saturday’s Today programme, Herman mentioned call recording in virtually every answer. Recording the call is essential; otherwise, you can’t prove that they called you despite entering into a contract to pay you £10 a minute by doing so. On his website, Herman says “I am just an ordinary person and I give this information to help people like myself” and “I set up to be non commercial and non profit making, just so that people could copy the letters that I wrote for their own use”. Only in the forums does Richard overcome his modesty and admit that he does also happen to own a call recording software company. It’s clearly a coincidence that in the Mail photos, he is wearing his company branded shirt (it was probably the only thing clean in the house), while his computer just happened to have his software on it when the picture was taken. You can imagine the argument as he tried to stand in the garden wearing a Black Sabbath t-shirt, but the Mail’s photographer insisted.

Herman’s wheeze is an extended advert for the merits of call recording, and if he says that his interest in call recording is irrelevant to his campaign, I do not believe him. There is nothing inherently wrong with Herman hawking his wares – if I could get myself on the TV to tell you all that training is absolutely vital and you could be fined for not doing it, I’d be straight in there. Picture me now wearing a 2040 branded polo neck (NB: I don’t have one of these), sternly regarding a brace of ICO CMP notices, and lecturing you all on how the ICO only gives you credit for external training (NB: they don’t). Every time I have a pop at the Information Commissioner’s Office, you are more than entitled to ignore me because I have vested interest in the Commissioner taking action. If they still adopted the Richard Thomas model of ‘say nothing, act casual’, I’d get less work.  To be fair, recording calls may garner good evidence if you want to challenge the scumbags currently flogging PPI reclaims, and so buying Herman’s product may actually be a good idea. But Herman’s easy ride shows a credulous media with insufficient willingness to probe. Evan Davis even raised the issue when interviewing Herman on Today, and they all laughed as he went for another call-recording plug in his answer.

If you don’t think that the whole business is just a shill for call recording, there’s still a problem. Herman’s YouTube video is confusing – he says that he complained to the ICO, and they wrote back to him saying that the calls did not appear to have been made from the UK. The ICO response will have been based on what he told them – so they had the impression that he was receiving calls from foreign countries, they would obviously and correctly say that they could do nothing. But if this was the case, neither could Herman – the Small Claims Court is no more able to force foreign companies to pay compensation than the ICO is capable of making non-EU companies comply with PECR. Either Herman doesn’t understand this, or he is deliberately painting the ICO as powerless. His website is bullish: “There is no point in contacting The Information Commissioner, they do not take any action.” Call recordings may help you to succeed in court (any lawyers’ views on this would be welcome), but you don’t need them to complain to the ICO. If the person who handled Herman’s complaint didn’t properly investigate it, then the ICO should account for that. We know now that the calls were indeed instigated by UK companies who are subject to PECR, so if they had the right information, they should have dealt with it. But if Herman’s complaint implied, even inadvertently, that he was getting robocalls from companies in the Far East, he only has himself to blame if the ICO didn’t pursue his complaint. Having established that they were UK-based, Herman does not mention whether he went back to the ICO; I’m guessing he didn’t.

Like Roberts before him, Mr Herman offers an attractive narrative of the little guy scoring a great blow against the perfidious scam-hawkers. The amount of texts and junk calls endured by UK citizens is appalling, and it’s in the interests of everyone in the path of the deluge that the problem be solved. But Herman, his call recording software and the Small Claims Court are not the solution. To have any real effect on the huge profits of the claims management industry and the spammers who feed them, thousands of people would have to record their calls, fill out the claim forms, pay the fee and hope that they get the same result as him. That sounds like a recipe for a lot of call recording software being sold without the wider problem actually getting sorted out.

The PPI claims calls are the result of two things – the deregulation of legal claims (touting for business in this way used to be flat-out illegal, so thanks to Labour for changing that) and the fact that banks routinely and enthusiastically mis-sold Payment Protection Insurance. Mr Herman says he feels sorry for the banks on his website, so for that, he can piss right off. Only because the banks did what they did, and now tell everyone how much cash they’ve had to set aside to compensate for their excesses are any of us getting these calls. We have this problem and I think the solution is enthusiastic and concerted action from the regulators, both the ICO and those that regulate claims management and related industries. Ironically, the ICO announced last month that it was seeking to issue penalties in the region of £250,000 for spam texts. Despite Herman’s claim, this suggests that they might be doing something. The worst thing for the public to do now is buy the snake oil and send the Commissioner the message that they’d rather do it for themselves.

I’m usually the person arguing against the ICO, and I am not converted now. I just think that Herman’s solution is privatisation, every man for himself. It’s worse than complaining to the ICO. If you’re affected by PPI calls and you want to do something about it, I think that you should play your small part in helping everyone. A guide to nuisance calls which appears to be the work of the Ministry of Justice, the ICO, OFCOM and a bunch of other people, carries a heavy emphasis throughout: complain. Complain, complain, complain, all the way through. Note down everything about the call that might identify who made it and complain to the ICO. Put the pressure on, and see if they deliver. The phrase ‘we’re all in this together’ has long since become a bad joke, but problems like the avalanche of PPI calls won’t be solved by people acting individually. Herman’s ‘stunning victory’ won’t stop a single call to anyone else – only the ICO and the other regulators have any chance of doing that. Given their record of inactivity on any number of fronts, the ICO has no right to the benefit of the doubt. But we should expect them to do their job, and hold them to account if they don’t.

And if this doesn’t convince you, do you really want to trust a man who thinks he’s Kirk Douglas?