ISPs provide email services as a “free” add-on that is unregulated
What rights have users of such services to require ISPs to correct errors in such systems ?
I recently reached a deadlock situation with my ISP where they refused to correct an error that could lead to them deleting emails without permission amongst other things. On taking this to my ISP’s specified arbritration service I was informed that they did not handle email problems because Ofcom did not regulate email system provision. On contacting Ofcom they informed me that the 2003 Communications Act did not empower them to regulate email systems.
Alasdair Taylor's Answer
Even if a service is not subject to special regulation, that doesn’t mean that anything goes.
The starting point for analysing your ISP’s obligations would be to look at the contract of service. Your ISP’s lawyers will likely have spent a lot of time thinking about your ISP’s potential liabilities when preparing this document, so it is likely that there will be no obvious breach. However, assuming you are a consumer (rather than a business), there are various pieces of consumer-protection legislation that might assist you.
The main ones to consider will probably be:
- The Consumer Protection from Unfair Trading Regulations 2008
- The Unfair Terms in Consumer Contracts Regulations 1999
- The Unfair Contract Terms Act 1977
To get an idea whether there is any legal remedy available to you, you would need to review the ISP contract of service in the light of this legislation.
Remedies available under the legislation vary from provision to provision – e.g. a breach of some provisions might give rise (in theory at least) to a prosecution by Trading Standards, while others may give you a right to bring an action for breach of statutory duty.
In any event, I’d be surprised if you could construct a sound legal argument that the ISP has an obligation to change its email systems – although an argument that damages are due in the event that emails are in fact lost may be easier to put together.
NB consumer protection laws in the UK will be overhauled in the near future, at which point the relevant legislation will change. One policy goal is to make the legislation simpler, but don’t hold your breath for that.
