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Tag Archives: PECR
Information Tribunal increases monetary penalty for company which made spam calls
The trouble with asking for a second opinion is it might be worse than the first one. Reactiv Media get an increased penalty after appealing to the tribunal.
In 2013 the First-tier Tribunal (Information Rights) ("FTT") heard the first appeal against a monetary penalty notice ("MPN") imposed by the Information Commissioner's Office ("ICO"). One of the first things in the appeal (brought by the Central London Community Healthcare NHS Trust) to be considered was the extent of the FTT's jurisdiction when hearing such appeals – was it, as the ICO suggested, limited effectively only to allowing challenges on public law principles? (e.g. that the original decision was irrational, or failed to take relevant factors into account, or took irrelevant factors into account) or was it entitled to approach the hearing de novo, with the power to determine that the ICO's discretion to serve an MPN had been exercised wrongly, on the facts? The FTT held that the latter approach (similar to the FTT's jurisdiction in appeals brought under the Freedom of Information Act 2000 (FOIA)) was the correct one, and, notably, it added the observation (at para. 39) that it was open to the FTT also to increase, as well as decrease, the amount of penalty imposed.
So, although an appeal to the FTT is generally a low-risk low-cost way of having the ICO's decision reviewed, it does, in the context of MPNs served either under the Data Protection Act 1998 (DPA) or the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), potentially carry the risk of an increased penalty. And this is precisely what happened when a direct marketing company called Reactiv Media recently appealed an ICO MPN. Reactiv Media bad been held to have made a large number of unsolicited telephone calls to people who had subscribed to the Telephone Preference Service ("TPS") – the calls were thus in contravention of Reactiv Media's obligations under regulation 21 of PECR. The ICO determined that this constituted a serious contravention of those obligations, and as some at least of those calls were of a kind likely to cause (or indeed had caused) substantial damage or substantial distress, an MPN of £50,000 was served, under the mechanisms of section 55 of the DPA, as adopted by PECR.
Upon appeal to the FTT, Reactiv Media argued that some of the infringing calls had not been made by them, and disputed that any of them had caused substantial damage or distress. However, the FTT, noting the ICO's submission that not only had the MPN been properly served, but also that it was lenient for a company with a turnover of £5.8m (a figure higher than the one the ICO had initially been given to understand), held that not only was the MPN "fully justified" – the company had "carried on its business in conscious disregard of its obligations" – but also that the amount should be increased by 50%, to £75,ooo. One presumes, also, that the company will not be given a further opportunity (as they were in the first instance) to take advantage of an early payment reduction.
One is tempted to assume that Reactiv Media thought that an appeal to the FTT was a cheap way of having a second opinion about the original MPN. I don't know if this is true, but it if is, it is a lesson to other data controllers and marketers that, after an appeal, they might find themselves worse off.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under Data Protection, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR
Tagged as DPA, ICO, marketing, PECR
The Lib Dems' digital rights bill – an empty promise?
On the 11th of April the Liberal Democrats announced that they would introduce a "Digital Rights Bill" if they were to form part of a coalition government in the next parliament. Among the measures the bill would contain would be, they said
Beefed up powers for the Information Commissioner to fine and enforce disciplinary action on government bodies if they breach data protection laws…Legal rights to compensation for consumers when companies make people sign up online to deliberately misleading and illegible terms & conditions
I found this interesting because the Lib Dems have recently shown themselves particularly unconcerned with digital rights contained in ePrivacy laws. Specifically, they have shown a lack of compliance with the requirement at regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). This regulation forbids the sending of direct marketing by email unless the recipient has notified the sender that she consents to the email being sent. The European directive to which PECR give effect specifies that "consent" should be taken to have been given only by use of
any appropriate method enabling a freely given specific and informed indication of the user's wishes, including by ticking a box when visiting an Internet website
And the Information Commissioner's Office (ICO), which regulates PECR, explains in guidance [pdf] that
the person must understand what they are consenting to. Organisations must make sure they clearly and prominently explain exactly what the person is agreeing to, if this is not obvious. Including information in a dense privacy policy or hidden in 'small print' which is hard to find, difficult to understand, or rarely read will not be enough to establish informed consent…consent must be a positive expression of choice. It does not necessarily have to be a proactive declaration of consent – for example, consent might sometimes be given by submitting an online form, if there was a clear and prominent statement that this would be taken as agreement and there was the option to opt out. But organisations cannot assume consent from a failure to opt out
But in July last year I began conducting an experiment. I put my name (actually, typed my email address) to a statement on the Lib Dem website saying
Girls should never be cut. We must end FGM
I gave no consent to the sending of direct email marketing from the Lib Dems, and, indeed, the Lib Dems didn't even say they would send direct email marketing as a result of my submitting the email address (and, to be clear, the ICO takes the, correct, view [pdf] that promotion of a political party meets the PECR, and Data Protection Act, definition of "marketing"). Yet since October last year they have sent me 23 unsolicited emails constituting direct marketing. I complained directly to the Lib Dems, who told me
we have followed the policies we have set out ion [sic] our privacy policy which follow the guidance we have been given by the ICO
which hardly explains how they feel they have complied with their legal obligations, and I will be raising this as a complaint with the ICO. I could take the route of making a claim under regulation 30 of PECR, but this requires that I must have suffered "damage". By way of comparison, around the same time I also submitted my email address, in circumstances in which I was not consenting to future receipt of email marketing, to other major parties. To their credit, none of the Conservatives, the SNP and the Greens have sent any unsolicited marketing. However, Labour have sent 8 emails, Plaid Cymru 10 and UKIP, the worst offenders, 37 (there is little that is more nauseating, by the way, than receiving an unsolicited email from Nigel Farage addressing one as "Friend"). I rather suspect that consciously or not, some political parties have decided that the risk of legal or enforcement action (and possibly the apparent ambiguity – although really there is none – about the meaning of "consent") is so low that it is worth adopting a marketing strategy like this. Maybe that's a sensible act of political pragmatism. But it stinks, and the Lib Dems' cavalier approach to ePrivacy compliance makes me completely doubt the validity and sincerity of Nick Clegg's commitment to
enshrine into law our rights as citizens of this country to privacy, to stop information about us being abused online
And, as Pat Walshe noticed the other day, even the Lib Dems' own website advert inviting support for their proposed Digital Rights Bill has a pre-ticked box (in non-compliance with ICO guidance) for email updates. One final point, I note that clicking on the link in the first paragraph of this post, to the Lib Dems' announcement of the proposed Bill, opens up, or attempts to open up, a pdf file of a consultation paper. This might just be a coding error, but it's an odd, and dodgy, piece of script.
Filed under consent, Data Protection, Information Commissioner, marketing, PECR, spam
Tagged as consent, marketing, PECR
A cookie for your health problems
Imagine this. You enter a shop (let's call it Shop A) to browse, and you look at an item of interest (let's call it Item Q). While you do so, an unbeknown to you, a shop assistant places a sticker on your back, revealing that you looked at this item, and when and where. You leave and a few days later enter another shop, where a shop assistant says "I understand a few days ago you were interested in Item Q, here are some similar items you might be interested in".
You might initially think "how helpful", but afterwards you might start to wonder how the second shop knew about your interest, and to think that it's a bit off that they seemed to have been able to track your movements and interests.
But try this as well. You go to your doctor, because you're concerned about a medical condition – let's say you fear you may have a sexually transmitted disease. As you leave the doctor secretly puts a sticker on your back saying when and where you visited and what you were concerned about. You later visit a pharmacy to buy your lunch. While you queue to pay an assistant approaches you and says openly "I understand you've been making enquiries recently about STDs – here are some ointments we sell".
The perceptive reader may by now have realised I am clunkily trying to illustrate by analogy how cookies, and particularly tracking cookies work. We have all come to curse the cookie warning banners we encounter on web sites based in Europe, but the law mandating them (or at least mandating the gaining of some sort of consent to receive cookies) was introduced for a reason. As the Article 29 Working Party of European Data Protection Authorities noted in 2011
Many public surveys showed, and continue to show, that the average internet user is not aware that his/her behaviour is being tracked with the help of cookies or other unique identifiers, by whom or for what purpose. This lack of awareness contrasts sharply with the increasing dependence of many European citizens on access to internet for ordinary everyday activities
The amendments to the 2002 EC Directive, implemented in domestic law by amendment regulations to the The Privacy and Electronic Communications (EC Directive) Regulations 2003 aimed to ensure that there was "an adequate level of privacy protection and security of personal data transmitted or processed in connection with the use of electronic communications networks" (recital 63). And Article 5 of the Directive specified that
Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC [the 1995 Data Protection Directive], inter alia, about the purposes of the processing
Of course, the requirement that users of electronic communications networks should give consent to the storing of or gaining access to information stored in their terminal equipment (i.e. that they should consent to the serving of cookies) has not been an easy one to implement, and even the Information Commissioner's Office's in 2013 rowed back on attempts to gather explicit consent, claiming that there was now no need because people were more aware of the existence of cookies. But I made what to me was an interesting observation recently when I was asked to advise on a cookie notice for a private company: it appeared to me, as I compared competitors' sites, that those which had a prominent cookie banner warning actually looked more professional than those that didn't. So despite my client's wariness about having a banner, it seemed to me that, ironically, it would actually be of some professional benefit.
Just what cookies are and can achieve is brought sharply home in a piece on the Fast Company website, drawing on the findings of a doctoral research student at the University of Pennsylvania. The paper, and the article, describe the use of web analytics, often in the form of information gathered from tracking cookies, for marketing in the health arena in the US. Tim Libert, the paper's author discovered that
over 90% of the 80,000 health-related pages he looked at on the Internet exposed user information to third parties. These pages included health information from commercial, nonprofit, educational, and government websites…Although personal data is anonymized from these visits, they still lead to targeted advertisements showing up on user's computers for health issues, as well as giving advertisers leads (which can be deciphered without too much trouble) that a user has certain health issues and what issues those are
The US lacks, of course, federal laws like PECR and the DPA which seek – if imperfectly – to regulate the use of tracking and other cookies. But given that enforcement of the cookie provisions of PECR is largely non-existent, are there similar risks to the privacy of web users' health information in the UK?
Filed under consent, cookies, Data Protection, PECR
Tagged as consent, DPA, PECR
Attend ICO DP conference, get unsolicited marketing from a hotel…
I greatly enjoyed yesterday's (2 March 2015) Data Protection Practitioner Conference run by the Information Commissioner's Office. I was representing NADPO on our stand, and the amount of interest was both gratifying and illustrative of the importance of having a truly representative body for professionals working in the field of information rights. NADPO were at pains – in running our prize draw (winners picked at random on stage by Information Commissioner Christopher Graham) – to make sure we let participants know what would or would not happen with their details. Feedback from delegates about this was also positive, and I'm pleased at least one privacy professional picked up on it. Therefore the irony of the following events is not lost on me.
I'd stayed overnight on Sunday, in a Macdonald hotel I booked through the agency Expedia. Naturally, I'm not one to encourage the sending to me of direct electronic marketing, and as the unsolicited sending of such marketing is contrary to regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 I didn't expect to receive any, either from the agent or the hotel. Yet yesterday I did receive some, from the hotel group. So I've sent them this complaint:
I booked the hotel through your agent, Expedia.co.uk. As a professional working in the field of privacy and data protection I always make sure I opt out of any electronic marketing. Hence, when making my booking, I checked the Expedia box which said
"Check the box if you do not want to receive emails from Expedia with travel deals, special offers, and other information".
However, I also consulted their privacy policy, which says:
"Expedia.co.uk may share your information with [suppliers] such as hotel, airline, car rental, and activity providers, who fulfill your travel reservations. Throughout Expedia.co.uk, all services provided by a third-party supplier are described as such. We encourage you to review the privacy policies of any third-party travel supplier whose products you purchase through Expedia.co.uk. Please note that these suppliers also may contact you as necessary to obtain additional information about you, facilitate your travel reservation, or respond to a review you may submit."
I then consulted Macdonald Hotels' privacy policy, but this seems to relate only to your website, and is silent on the use of clients' data passed on by an agent.
Accordingly, I cannot be said to have consented to the sending by you to me of electronic marketing. Yet yesterday at 13.07 I received an email saying "Thank you for registering with Macdonald Hotels and Resorts…As a member of our mailing list you will shortly start to receive [further unsolicited electronic marketing]."
Ironically enough, I was in Manchester to attend the annual Data Protection Practitioners' Conference run by the Information Commissioner's Office (ICO). As you will be aware, the ICO regulates compliance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Before I raise a complaint with the ICO I would appreciate a) your removing me from any marketing database b) not receiving any further unsolicited marketing, and c) receiving your comments regarding your apparent breach of your legal obligations.
Each instance of unsolicited marketing is at best one of life's minor irritants, but I have concerns that, because of this, some companies treat compliance with legal obligations as, at best, a game in which they try to trick customers into agreeing to receiving marketing, and at worst, as unnecessary. It may be that I received this particular unsolicited marketing from Macdonald Hotels by mistake (although that in itself might raise data protection concerns about the handling of and accuracy of customer data) but it happens too often. The media have rightly picked up on the forthcoming changes to PECR which will make it easier for the ICO to take enforcement actions regarding serious contraventions, but, sadly, I don't see the lower level, less serious contraventions, decreasing.
Filed under consent, Data Protection, Information Commissioner, marketing, PECR
What's happening with changes to anti-spam laws?
In October last year the Department for Culture Media and Sport (DCMS) announced a consultation to lower, or even remove, the threshold for the serving financial penalties on those who unlawfully send electronic direct marketing. I wrote at the time that
There appears to be little resistance (as yet, at least) to the idea of lowering or removing the penalty threshold. Given that, and given the ICO's apparent willingness to take on the spammers, we may well see a real and significant attack on the scourge
The Information Commissioner's Office (ICO) and DCMS both seemed at the time to be keen to effect the necessary legislative changes to amend the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) so that, per the mechanism at section 55A of the Data Protection Act 1998 (DPA), adopted by PECR by virtue of regulation 31, either a serious contravention alone of PECR, or a serious contravention likely to cause annoyance, inconvenience or anxiety, could give rise to a monetary penalty without the need to show – as now – likely substantial damage or substantial distress.
However, today, the Information Commissioner himself, Christopher Graham, gave vent to frustrations about delay in bringing about these changes:
Time and time again the Government talks about changing the law and clamping down on this problem, but so far it's just that – talk. Today they are holding yet another roundtable to discuss the issue, and we seem to be going round in circles. The Government need to lay the order, change the law and bring in a reform that would make a real difference
So what has happened? Have representatives of direct marketing companies lobbied against the proposals? It would be interesting to know who was at today's "roundtable" and what was said. But there was certainly an interesting tweet from journalist Roddy Mansfield. One hopes a report will emerge, and some record of the meeting.
One wonders why – if they are – marketing industry bodies might object to the proposed changes. The financial penalty provisions would only come into play if marketers failed to comply with the law. Spammers would get punished – the responsible companies would not.
Filed under Data Protection, Information Commissioner, marketing, monetary penalty notice, PECR, spam texts
Tagged as Christopher Graham, DPA, ICO, marketing, PECR
Labour's "HowManyOfMe" – legitimate use of the electoral register?
Is Labour's shiny new web widget "HowManyOfMe" compliant with the party's obligations under electoral and ePrivacy law?
Regulations 102 and 106 of the Representation of the People (England and Wales) Regulations 2001 (as amended)1 mean that registered political parties can apply for a copy of the full electoral register, but they can only supply, disclose or make use of the information therein for "electoral purposes". As far as I can see "electoral purposes" is nowhere defined, and, accordingly, I suspect it permits relatively broad interpretation, but, nevertheless, it clearly limits the use to which a political party can make use of electoral registration information.
With this in mind, it is worth considering whether the apparent use of such information by the Labour Party, in a new website widget, is a use which can be described as "for electoral purposes". The widget in question invites people to submit their name (or indeed anyone else's), email address and postcode and it will tell you how many voters in the country have that name. Thus, I find that there are 393 voters who have the name "Christopher Graham". The widget then encourages users to register to vote. In small print underneath it says
in case you're interested, this tool uses an aggregate figure from the electoral register and we've taken steps to protect the privacy of individuals
Well, I am interested. I'm interested to know whether this use of the electoral register is purely for electoral purposes. If it is, if its purpose is to encourage people to register to vote, then why does it need an email address? The widget goes on to say
The Labour Party and its elected representatives may contact you about issues we think you may be interested in or with campaign updates. You may unsubscribe at any point. You can see our privacy policy here.
But if they are using the electoral register to encourage people to give up email addresses which may then receive political marketing, surely this is stretching the use of "for electoral purposes" too far? Moreover, and despite the small print privacy notice, and the almost-hidden link to a generic privacy policy, any emails received by individuals will be likely to be sent in contravention of Labour's obligations under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), which give effect to the UK's obligations under Directive 2002/58/EC. This is because regulation 22 of PECR prohibits, in terms, the sending of electronic direct marketing (and promotion of a political party constitutes such marketing) without the prior consent of the recipient. Consent, the Directive tells us, must be "a freely given specific and informed indication of the user's wishes". A vague description, as the widget here gives us, of what may happen if one submits an email address, and a statement about unsubscribing, do not legitimise any subsequent sending of direct marketing.
The email address I used is one I reserve for catching spammers; I've not received anything yet, but I expect to do so. I would be prepared to argue that any email I receive cannot be said to relate to the electoral purpose which permit use of the electoral register, and will be sent in contravention of PECR. As I said recently, one of the key battlegrounds in the 2015 general election will be online, and unless action is taken to restrain abuse of people's personal information, things will get nasty.
1The legislation.gov.uk doesn't provide updated ("consolidated") versions of secondary legislation, so there's no point in linking to their version of the regulations.
Filed under consent, Data Protection, marketing, PECR, privacy notice
Online privacy – a general election battleground
It's becoming increasingly clear that one of the key battlegrounds in the 2015 General Election will be online. The BBC's Ross Hawkins reports that the Conservatives are spending large amounts each month on Facebook advertising, and Labour and UKIP, while not having the means to spend as much, are ramping up their online campaigning. But, as Hawkins says
the aim is not to persuade people to nod thoughtfully while they stare at a screen. They want consumers of their online media to make donations or, even better, to get their friends' support or to knock on doors in marginal constituencies…[but] for all the novelties of online marketing, email remains king. Those Tory Facebook invoices show that most of the money was spent encouraging Conservative supporters to hand over their email addresses. Labour and the Conservatives send emails to supporters, and journalists, that appear to come from their front benchers, pleading for donations
I know this well, because in July last year, after growing weary of blogging about questionable compliance with ePrivacy laws by all the major parties and achieving nothing, I set a honey trap: I submitted an email address to the Conservative, Labour, LibDem, Green, UKIP, SNP and Plaid Cymru websites. In each case I was apparently agreeing with a proposition (such as the particularly egregious LibDem FGM example) giving no consent to reuse, and in each case there was no clear privacy notice which accorded with the Information Commissioner's Office's Privacy Notices Code of Practice (I do not, and nor does the ICO, at least if one refers to that Code, accept that a generic website privacy policy is sufficient in case like this). Since then, the fictional, and trusting but naive, Pam Catchers (geddit??!!) has received over 60 emails, from all parties contacted. A lot of them begin, "Friend, …" and exhort Pam to perform various types of activism. Of course, as a fictional character, Pam might have trouble enforcing her rights, or complaining to the ICO, but the fact is that this sort of bad, and illegal, practice, is rife.
To be honest, I thought Pam would receive more than this number of unsolicited emails (but I'm probably more cynical than her). But the point is that each of these emails was sent in breach of the parties' obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) which demands that recipients of electronic direct marketing communications must have given explicit consent prior to the sending. By extension, therefore, the parties are also in breach of the Data Protection Act 1998 (DPA), which, when requiring "fair" processing of personal data, makes clear that a valid privacy notice must be given in order to achieve this.
The ICO makes clear that promotion by a political party can constitute direct marketing, and has previously taken enforcement action to try to ensure compliance. It has even produced guidance for parties about their PECR and DPA obligations. This says
In recent years we have investigated complaints about political parties and referendum campaigners using direct marketing, and on occasion we have used our enforcement powers to prevent them doing the same thing again. Failure to comply with an enforcement notice is a criminal offence.
But by "recent" I think they are referring at least six years back.
A data controller's compliance, or lack thereof, with data protection laws in one area is likely to be indicative of its attitude to compliance elsewhere. Surely the time has come for the ICO at least to remind politicians that online privacy rights are not to be treated with contempt?
Filed under consent, Data Protection, enforcement, Information Commissioner, marketing, PECR, privacy notice
Tagged as consent, data protection, PECR
Why does nobody listen to me?
Quite a few media outlets and commentators have picked up on the consultation by the Department for Culture, Media and Sport I blogged about recently. The consultation is about the possibility of legislative change to make it easier for the Information Commissioner's Office (ICO)(ICO) to "fine" (in reality, serve a civil monetary penalty notice) on people or organisations who commit serious contraventions of ePrivacy law in sending unsolicited electronic marketing messages (aka spam calls, texts, emails etc).
However, almost every report I have seen has missed a crucial point. So, we have The Register saying "ICO to fine UNBIDDEN MARKETEERS who cause 'ANXIETY'…Inconvenience, annoyance also pass the watchdog's stress test", and Pinsent Masons, Out-Law.com saying "Unsolicited marketing causing 'annoyance, inconvenience or anxiety' could result in ICO fine". We even have 11KBW's formidable Christopher Knight saying
the DCMS has just launched a consultation exercise on amending PECR with a view to altering the test from "substantial damage or distress" to causing "annoyance, inconvenience or anxiety"
But none of these spot that the preferred option of DCMS, and the ICO is actually to go further, and give the ICO the power to serve a monetary penalty notice even when no harm has been shown at all
Remove the existing legal threshold of "substantial damage and distress" (this is the preferred option of both ICO and DCMS. There would be no need to prove "substantial damage and distress", or any other threshold such as 'annoyance, inconvenience or anxiety'…
So yes, this is a blog post purely to moan about the fact that people haven't read my previous post. It's my blog and I'll cry if I want to.
Chris Knight is so formidable that he's both updated the Panopticon post and pointed out the oddness of option 3 being preferred when nearly all of the consultation paper is predicated on option 2 being victorious.
Filed under Information Commissioner, marketing, monetary penalty notice, PECR, spam texts
Tagged as ICO, PECR
DCMS consulting on lower threshold for "fining" spammers
UPDATE: 08.11.14
Rich Greenhill has spotted another odd feature of this consultation. Options one and two both use the formulation "the contravention was deliberate or the person knew or ought to have known that there was a risk that the contravention would occur", however, option three omits the words "…or ought to have known". This is surely a typo, because if it were a deliberate omission it would effectively mean that penalties could not be imposed for negligent contraventions (only deliberate or wilful contraventions would qualify). I understand Rich has asked DCMS to clarify this, and will update as and when he hears anything.
An interesting development of this story was how many media outlets and commentators reported that the consultation was about lowering the threshold to "likely to cause annoyance, inconvenience or anxiety", ignoring in the process that the preferred option of DCMS and ICO was for no harm threshold at all. Christopher Knight, on 11KBW's Panopticon blog kindly amended his piece when I drew this point to his attention. He did, however observe that most of the consultation paper, and DCMS's website, appeared predicated on the assumption that the lower-harm threshold was at issue. Today, Rich Greenhill informs us all that he has spoken to DCMS, and that their preference is indeed for a "no harm" approach: "Just spoke to DCMS: govt prefers PECR Option 3 (zero harm), its PR is *wrong*". How very odd.
The Department of Culture, Media and Sport (DCMS) has announced a consultation on lowering the threshold for the imposing of financial sanctions on those who unlawfully send electronic direct marketing. They've called it a "Nuisance calls consultation", which, although they explain that it applies equally to nuisance text messages, emails etc., doesn't adequately describe what could be an important development in electronic privacy regulation.
When, a year ago, the First-tier Tribunal (FTT) upheld the appeal by spam texter Christopher Niebel against the £300,000 monetary penalty notice (MPN) served on him by the Information Commissioner's Office (ICO), it put the latter in an awkward position. And when the Upper Tribunal dismissed the ICO's subsequent appeal, there was binding authority on the limits to the ICO's power to serve MPNs for serious breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). There was no dispute that, per the mechanism at section 55A of the Data Protection Act 1998 (DPA), adopted by PECR by virtue of regulation 31, Niebel's contraventions were serious and deliberate, but what was at issue was whether they were "of a kind likely to cause substantial damage or substantial distress". The FTT held that they were not – no substantial damage would be likely to arise and when it came to distress
the effect of the contravention is likely to be widespread irritation but not widespread distress…we cannot construct a logical likelihood of substantial distress as a result of the contravention.
When the Upper Tribunal agreed with the FTT, and the ICO's Head of Enforcement said it had "largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant" it seemed clear that, for the time being at least, there was in effect a green light for spam texters, and, by extension, other spam electronic marketers. The DCMS consultation is in response to calls from the ICO, and others, such as the All Party Parliamentary Group (APPG) on Nuisance Calls, the Direct Marketing Association and Which for a change in the law.
The consultation proposes three options – 1) do nothing, 2) lower the threshold from "likely to cause substantial damage or substantial distress" to "likely to cause annoyance, inconvenience or anxiety", or 3) remove the threshold altogether, so any serious and deliberate (or reckless) contravention of the PECR provisions would attract the possibility of a monetary penalty. The third option is the one favoured by DCMS and the ICO.
If either of the second or third options is ultimately enacted, this could, I feel, lead to a significant reduction in the prevalence of spam marketing. The consultation document notes that (despite the fact that the MPN was overturned on appeal) the number of unsolicited spam SMS text message sent reduced by a significant number after the Niebel MPN was served. A robust and prominent campaign of enforcement under a legislative scheme which makes it much easier to impose penalties to a maximum of £500,000, and much more difficult to appeal them, could put many spammers out of business, and discourage others. This will be subject, of course, both to the willingness and the resources of the ICO. The consultation document notes that there might be "an expectation that [MPNs] would be issued by the ICO in many more cases than its resources permit" but the ICO has said (according to the document) that it is "ready and equipped to investigate and progress a significant number of additional cases with a view to taking greater enforcement action including issuing more CMPs".
There appears to be little resistance (as yet, at least) to the idea of lowering or removing the penalty threshold. Given that, and given the ICO's apparent willingness to take on the spammers, we may well see a real and significant attack on the scourge. Of course, this only applies to identifiable spammers in the domestic jurisdiction – let's hope it doesn't just drive an increase in non-traceable, overseas spam.
Filed under Data Protection, enforcement, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR, spam texts, Upper Tribunal
Tagged as DPA, ICO, PECR
Green light for spam texters – for now
The ICO has effectively conceded he has no current powers to issue monetary penalties on spam texters.
In June this year the Upper Tribunal dismissed the appeal by the Information Commissioner's Office (ICO) against the quashing of a £300,000 monetary penalty notice (the MPN) served on spam texter Christopher Niebel. The MPN had been issued pursuant to the ICO's powers under section 55A of the Data Protection Act 1998 to serve such a notice if there has been a serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) of a kind likely to cause substantial damage or substantial distress. The Upper Tribunal held that the First-tier Tribunal had not erred in law in finding that the ICO's relevant interpretation of "distress" was unsustainable:
the tribunal took issue with the Commissioner's guidance as to the meaning of "distress" and, in my opinion rightly so. According to that guidance, "Distress is any injury to feelings, harm or anxiety suffered by an individual" (at paragraph [12], emphasis added). The tribunal's conclusion was that if this "involves the proposition that it is not possible to have 'any injury to feelings' which falls short of 'distress' then, it seems to us, that the definition is at odds with common experience and with the ordinary use of English [¶60]
As the law required evidence that Niebel's company's sending of spam texts had been of a kind likely to cause substantial distress, and as the ICO's evidence did not match up to this, the MPN had been rightly quashed. Implicitly, the Upper Tribunal was suggesting that further MPNs of this kind would also not be sustainable, and, explicitly, it questioned whether, if Parliament wanted to give the ICO powers to financially punish spam texters, it would require a change in the law
[a] more profitable course of action, is for the statutory test to be revisited…a statutory test that was formulated in terms of e.g. annoyance, inconvenience and/or irritation, rather than "substantial damage or substantial distress", might well have resulted in a different outcome.
To no real surprise, since the ICO lost this appeal, no further MPNs have been issued for spam texting (some have been served for spam telephone calls). Now the ICO, in a blog post by their Head of Enforcement Steve Eckersley has effectively conceded that the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, saying it had "largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant". And Eckersley picks up the call for a law change, confirming that there will be a consultation later this year (whether any of this will see results this side of the general election, however, is another question). This call echoes one made by the Information Commissioner himself, who said in February
We have just got to lower that hurdle because I think if you ask most people they would say silent calls and unsolicited spam texts are one of the great curses of the age – and if the Information Commissioner can't protect you it's a poor lookout.
There are, of course, other strings to the ICO bow, and Eckersley refers to some of them
we are using our existing powers to hold companies to account and to disrupt their unlawful activities….and we are obtaining undertakings from and issuing enforcement notices, effectively cease-and-desist orders, to companies that breach PECR.
This sounds good, but leaves me rather puzzled: as the ICO has confirmed to me, no enforcement notices have been served and only one undertaking obtained, against companies or individuals who have sent spam texts in breach of PECR. Enforcement notices are a strong power – breach of one is a criminal offence – and only require the ICO to consider whether the PECR contravention has caused or is likely to cause any person damage or distress, not "substantial damage or substantial distress". This lower threshold should make it much more difficult for enforcement to be resisted. Maybe some enforcement notices are on their way? One rather hopes so, because, for the moment, it looks like spam texters have received a green light.
Tim Turner points out to me that a conviction for breach of an enforcement notice is not a recordable offence it will not make its way on to the Police National Computer, and will not therefore generally result in disclosure for, e.g. employment purposes. Tim's view, and it is a compelling one, is that for a lot of spammers the threat of a minor conviction for breach of a legal notice is not one which is likely to dissuade them from their practice.
Filed under Data Protection, enforcement, Information Commissioner, Information Tribunal, marketing, monetary penalty notice, nuisance calls, PECR, Upper Tribunal
Tagged as Christopher Graham, data protection, PECR
2040 Info Law Blog
Act Now Training
Alistair Sloan
Andrew Walsh's blog
BBC's FOI Page
Campaign for Freedom of Information
Confirm or Deny
FOIKid
FOIMan
Hawktalk – Amberhawk blog
Human Rights Blog
Information Commissioner's Office
Judith Townend's blog
Martin Hoskin's blog
NADPO
Panopticon Blog
Open by Design, Closed by Default?
ICO still breaching law it's meant to oversee
Boris Johnson and GDPR
Information Tribunal rejects data subject appeals under new Data Protection Act
ICO breaching the law it's meant to oversee
InformationRightsandWrongs by Jon Baines is licensed under a Creative Commons Attribution 4.0 International License.
informationrightsandwrongs · News and comments from a UK Information Rights perspective


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Wanderlust: 72 Hours in Vienna
In each issue of our print magazine, we visit various cities around the world, speaking with residents and getting their stories. Here we present a portrait of Vienna from the mouths of its own residents, originally printed in our fall 2013 issue. Electronic Beats returns to Vienna next Saturday, November 23rd as part of Electronic Beats' festival season—for full details, head here. All photos by Luci Lux. Main photo: Vienna's Prater amusement park at dusk.
The quality of life in the former capital of the Austro-Hungarian Empire is indisputably high: the drinking water is the purest of any city in the world, the politics have become slightly less fascist since the death of Jörg Haider, the food is delectable, and its disparate music scenes remain vital. But it still feels sleepy. Almost everywhere you look, architectural pomp serves as a reminder of Vienna's former life as a geopolitical superpower and its status as the birthplace of most significant branches of modernism, from philosophy's linguistic turn and the rise of psychoanalysis to the advent of atonality. This is a city defined as much by its former greatness as by the forced exile of its greatest citizens. Where does that leave it today?
Thursday night: A long dinner with Peter Kruder of Kruder & Dorfmeister (and G-Stone Recordings) at Gelbmanns Gaststube, Wilhelminenstrasse 62.
Peter Kruder is an electronic musician and founding member of both legendary duo Kruder & Dorfmeister and the label G-Stone Recordings. He also looks a bit like Mephistopheles these days.
I grew up in Vienna and I never really wanted to leave. When Kruder & Dorfmeister became successful our travelling schedule was insane. Within three years I'd been around the world a couple of times, and only a few other cities really appealed to me in terms of living. Over the last fifty years, Vienna hasn't changed that much in its appearance. You still see old neon signs and other relicts of the past. Life is beautiful here; the food is exceptional in almost every traditional Gasthaus—family-run restaurants that you'll find all over the city. The quality of the water is also incredibly high; everybody here drinks it from the tap. It's been certified as the best drinking water in the world. This is true quality of life. But the best thing about my hometown is that you can be who you are. Nobody will bother you.
Of course, there is a price to pay for that freedom. The Viennese are only superficially friendly. It's been said that we are actually curmudgeons deep down, which I would agree with. Here, you're allowed to be introverted and gruff. But if you dare to dig deeper, at the core you'll find warmth and heartiness. See it as a series of tests that you have to pass if you'd like to enter the soul of Vienna. The arch Viennese is like a piece of Esterházy torte that consists of many layers—all of which carefully make up that special taste.
As a musician in Vienna, all kinds of music shaped my taste. In the legendary U4 club, DJs would spin an extremely wide variety of records, and, on account of that kind of eclecticism, I was socialized in equal parts by Italian cosmic music, New York no-groove, bossa from Rio de Janeiro, punk and new wave from London and many more styles. I always loved putting in effort to explore new musical territory—as opposed to things that are omnipresent here, like classical and Viennese waltz music. Musically speaking, Vienna has always been a melting pot of sorts, and that's surely led to open-mindedness on the behalf of DJs and musicians. You're rarely confronted with crowds that only enjoy one style of music. I have to say that I love this attitude, and it has strongly informed my own way of planning my DJ sets. At the moment, I rarely play less than four hours, which is time enough to take the crowd on a musical trip from one style to another.
Talking about music in Vienna, one name must be mentioned: Falco. I had the pleasure of meeting him once in person. He wanted Richard [Dorfmeister] and me to help him produce his next album but then tragically died a couple of months later in a car accident in the Dominican Republic. Falco is something of a godfather to Vienna's modern music scene. Even if you only take his first three albums, Falco's style was the definition of cool for multiple generations here. He used to hang out with the dangerous bosses and barons of the red-light district of Vienna, the so-called Strizzi—and he adapted their slang. Talking to him was like talking to a duke of organized crime. We once headlined a show in the city at the Heldenplatz in front of an enormous crowd of around 50,000 people. We took great care to put together a rocking set list. The only problem was the finale. Richard and I couldn't find a fitting track. Only hours before our show, I heard Falco's "Ganz Wien" ("All of Vienna") in a taxi with the infamous lines: Ganz Wien ist heut' auf Heroin / Ganz Wien ist so herrlich hin. ("All of Vienna is on heroin, all of Vienna is totally wasted.") That's what we played as the last track, and I've never seen any crowd react as enthusiastically and heartfelt as that night. It still gives me the shivers.
Friday: Coffee and conversation with Therese Muxeneder, head of the archives at the Arnold Schönberg Center, Landstraße 1030
Musicologist Therese Muxeneder is the head of the archives and library at The Arnold Schönberg Center in Vienna.
The Schönberg Center was founded in 1998 and houses the entire Schönberg estate, which was moved from Los Angeles to Vienna. There had been an entire Schönberg Institute at the University of Southern California, between 1975 and 1997, but at some point there was a fight with the Schönberg heirs, who weren't pleased with the fact that the building was also being used for unrelated purposes. This resulted in a worldwide search for a new home for his archives, and appropriately enough, Vienna won. Of course, this is Schönberg's birthplace, and Vienna was the only city to offer his heir's an institute that functioned independently from an academic system. We are publicly funded by the city and the Austrian government and celebrated our fifteen-year anniversary this year. This independence is important for numerous reasons, but it's also especially appropriate when considered in connection to his biography as an artist and composer. Schönberg grew up in the second district of Vienna in a Jewish family. He did not attend university and was entirely self-taught in terms of musical education. In the late 1890s he converted to Protestantism—a fairly common occurrence for Jews seeking to find a place amongst the Austrian middle class at the time.
As Schönberg taught himself to be a composer entirely on his own, step by step, he would analyze the scores of the Viennese masters from Baroque to contemporary music and eventually come under the tutelage of Mahler and Richard Strauss through his brother-in-law, the composer Alexander von Zemlinsky. Nowadays, being an autodidact is not an uncommon occurrence, but back then, within the extreme academic hierarchy of the classical world and in fine arts, it was practically unheard of. In my opinion, this independent thinking and independent ear is what allowed him to cause one of the first big scandals in music history: taking the classical string quartet and adding a soprano. Performed for the first time in 1908, the critics didn't know what to do with his String Quartet Number 2, which included texts by contemporary poet Stefan George. There were literally fistfights and screaming, punches thrown and chairs overturned. People rioted because of the music—that is, because of Schönberg's compulsion to speak a radically contemporary language, both lyrically and musically. His approach had nothing to do with provocation. There is nothing comparable in music today because on the one hand we're used to all kinds of styles, while on the other hand we're absolutely not used to expressing our feelings anymore in a concert hall—at least not with so-called "serious" contemporary classical music.
It always annoys me to consider how Schönberg has become an icon for "ugly" or "painful" music, demonized as one of the twentieth century's biggest muckraker composers. I see that as traceable to his compositions' fundamental lack of sequences and repetition. Twelve-tone phrasing is aphoristic. Strung together, these aphorisms form a novel, but not one that's easy to follow or wastes time with needless redundancies. You can't just take a twelve-tone piece and listen to it easily in the car. This is powerful, emotional music, not the kind you would find in a grocery store, although there is a famous story of the entire Schönberg family visiting a mall in California in the sixties and stopping to listen to the familiar music being piped through the spatious shopping area, which was Transfigured Night. I suppose in a positive sense, there's no accounting for taste.
Finally, I think it's important to mention how significant Schönberg is to artistic disciplines beyond music. You can't open a book about the history of art or European and American modernism without his being mentioned. And while most art critics scoff at Schönberg's paintings, painters themselves found Schönberg incredibly interesting precisely because of his unschooled approach. Kandinsky, Schiele, Paul Klee, you name it.
Schönberg famously left Vienna after Hitler's rise to power, and, as we all know, his music was denounced as "degenerate art" by the Nazis. When he was forced into exile, he converted back to Judaism and became interested in Zionism, which he also explored musically in later works. But it somehow seems appropriate that his radical approach to music and culture would be welcomed with such open arms in the New World. Schönberg famously told Theodor Adorno, "My music is not beautiful," but he might as well have said: not beautiful for everyone. After all, Schönberg also said: "If it is art, it is not for all, and if it is for all, it isn't art."
Friday: At home with Peter Rehberg, co-founder of label Editions Mego and technoise evangelist
Peter Rehberg, aka Pita, is a British-born electronic musician and co-founder of the label Editions Mego, formerly known simply as Mego. He was making and releasing noisy techno long before it became en vogue.
In 1987, when I was nineteen, I left my home just outside of London with a box of records and a suitcase. I've no idea why I chose Vienna to move to; maybe it's because I didn't know anything about it and was intrigued by the mystery. However, within two weeks of being here I was DJing at a place called Chelsea, and two weeks later . . . I wasn't. They kicked me out because they didn't like good music, which is funny because I wasn't playing anything weird: Mark Stewart, Sonic Youth, On-U Sound stuff, probably a bit of Swans but fair enough, I was a bit too wild for them. It wasn't Gun Club. In the meantime I met the five people who were interested in the same things as me, and one thing led to the other. The so-called techno scene kicked off here during the late eighties, and I got involved with that. We started doing Mego as a reaction to, or rather against, boring techno labels, which is to say: we wanted to do something in the techno field but not mundane. People forget, the very first Mego records were distributed by Neuton, a big distributor near Frankfurt, and Ramon [Bauer] and Andreas [Pieper], my partners, operated the Mainframe label which put out Ilsa Gold beforehand, so we were actually part of the techno scene. But after two or so years Neuton dropped us because we weren't delivering the banging beats—we were a bit more . . . weird. In some ways we were the forerunner to the techno-and-noise hybrid which is very in now with people like Container and Pete Swanson—noise-scene people making this techno stuff, which is fair enough, I suppose. I mean, techno is basically noise anyway, rhythmical noise. The funny thing is that the new record on Spectrum Spools is by Donato Dozzy, and we're releasing the new Sensate Focus, which is house-y and techno, and it's kind of like: this is what we were doing when we started!
During the beginning of the original Mego label in 1994, our studio was based in Berlin because that's where Andreas lived, but later we concentrated on Vienna. It's a very comfortable city when you compare it to London, Paris or New York—those big, harsh cities where having a relatively normal lifestyle is hard. Of course, Berlin is the classic option for everyone in the creative field, and that's probably the reason I decided I didn't want to go there; you walk down the street, and you've met six musicians before you get to the first corner. I like the idea of anonymity; I like the idea that there's hardly anyone living on the same street as me. For a label like Mego, location isn't important anyway; all I need is a post office, an Internet connection and an airport. In fact, the label barely exists in Austria—I think I sell about five records here, and the Viennese music scene doesn't feed back on my work. Sure, I work with Fennesz, Philipp Quehenberger, Billy Roisz, Shampoo Boy, and I just recently did a record with Stefan Neméth from Radian, but these are all guys I've been working with since the beginning. Actually, I'm not sure if people here know I exist. Or maybe they know I exist and they think it's rubbish. Or maybe they think I'm too famous to be approached but that's always the way. Most bands have their biggest audiences outside of their cities. I guess people want something exotic.
There's probably a connection between what I do and the philosophical and musical background of Vienna, but it's not for me to say. There is a weighty backdrop here in terms of music and art: Nitsch, Freud and just look at the city, the population is smaller than it was a hundred years ago and for years we lived just up the road from the Iron Curtain so no industry or businesses ever came here. Yes, the city's in color now but before it was in black and white. What's more, the Viennese mentality is quite grim and melancholic; they have a very dark humor attributable to the recent history, a sort of "don't get too positive because it's probably going to get shit again" outlook. Essentially, this was a big country and now it's a small country, with a history of right-wing nationalism which is very confusing because what is Austria, really? It's some republic they managed to scrape back together from a former empire, from a monarchy. It's not really a country. The main problem is that the older generation never really came to terms with what happened in the World War II because they felt it wasn't their fault—as if they were conned into believing the great German Right was going to save them all. The difference between Vienna and Berlin, which also has a dark history, is that Berlin was totally destroyed during the war, and most of it has now been rebuilt. Vienna, in contrast, looks like a grand capital that's lost its grandeur; a city with big ring roads and beautiful buildings built for an empire that simply no longer exists. How could it not have a weird effect?
Saturday: Learning about the unconscious from psychiatrist Elisabeth Skale, director of the Vienna Psychoanalytic Society
Elisabeth Skale is a trained neurologist, psychiatrist and current head of the Vienna Psychoanalytic Society, which was founded by Sigmund Freud and also included the likes of Carl Jung and Wilhelm Reich. Contrary to Vienna's depictions in art and film, Skale does not connect the city with a particular psychogeographical interest in sexuality and perversion.
The Vienna Psychoanalytic Society was founded in 1908 by Sigmund Freud following the completion of his Interpretations of Dreams, probably his most well-known work. Originally it was just a small circle to discuss interesting aspects of psychoanalytic theory, although the idea soon became to found an international society in order to evangelize, so to speak. Naturally, the Society's most formative years were pre-war, as many of the members of the society who were Jewish were forced into exile during the German annexation of Austria in 1938. Psychoanalysis as such was not allowed under Hitler, but the Nazis were intensely interested in psychotherapy as a means to create a new human being—to form the Übermensch.
These days we are eager to include a broader range of Viennese society into what we do, including journalists, economists and philosophers. To that end we've founded an academy promoting psychoanalysis and its applications to areas beyond therapy because, as we all know, Freud's ideas were based on a plethora of different sources—some medical, others literary, mythological and philosophical. It was actually a well-known architect who made me aware of a memorial installed by Viennese officials at the Cobenzl, a hilly area on the outskirts of Vienna. On a bronze plaque Freud's words to his friend Wilhelm Fliess are engraved: "Do you suppose that someday a marble tablet will be placed on the house inscribed with these words: In this house on July 24th 1895 the secret of dreams was revealed to Dr. Sigmund Freud? At this moment I see little prospect of it." The house he was referring to was the Schloss Bellevue, a sanatorium where he had been assistant doctor, and which was later turned into a hotel before becoming dilapidated and eventually destroyed in the sixties. The memorial's design illustrates how the Viennese officials managed to fulfill Freud's wish for a plaque and counteract it at the same time by choosing a different material, exposing the characteristic dynamics of a neurotic symptom, one of Freud's most important findings.
I occasionally think about analyzing the psychogeography of a place like Vienna. Actually, I think about it perhaps more in terms of a psychosociology: attempting to understand history and movements in terms of a projection of or a defense against the individual unconscious dynamics of sexuality and aggression. Approaching the study of world cultures through that lens was something that fascinated Freud, as we know from Totem and Taboo. This is something that was revived by the leftist Austrian student movement, which was exploring new concepts of sexuality through psychoanalysis—which, of course, relates to the Viennese Actionists. That's one generation before me, but I know that the fascination with people like Otto Muehl and Hermann Nitsch had a lot to do with therapy. But generally, it's difficult for me to describe the mindset of the Viennese. It's probably easier to describe us from the outside—just as the therapist might better understand the patient than the patient understands him or herself. Certainly, Austrian society is not the most open. But it is slowly starting to become more cosmopolitan. It's almost as if Vienna is an island, an anachronistic hold-over from the times of the monarchy. In the area where he had his practice, around the Berggasse and the Hotel Regina, I often think of Freud's noctural walks and vivid discussions, as Lou Andreas Salome has vividly described. Of course, some people link Vienna and Austria in general with a greater psychogeographical interest in sexuality and perversion, but I do not share this opinion.
Sunday: Artist Bernhard Leitner discusses why the Wittgenstein House stands for the philosopher's artistic revelation, Parkgasse 18
Bernhard Leitner has also been key in preventing a house designed by Ludwig Wittgenstein from being destroyed.
It's important to understand that Ludwig Wittgenstein's architecture must be judged as architecture. The Wittgenstein House in Vienna is not applied philosophy. The idea of reading this house as a product of the philosophical propositions from, say, his Logical Philosophical Treatise is simply a mistake. However, the house is the product of the same person, the same thinking, the same attitude. Here, he is reflecting on form, material, structure, proportions and color. It was a challenge that pushed him to test the borders of his senses and to arrive at knowledge not through logic but through the very concrete process of creating architecture and creating his own aesthetics. Traces of this intense work can certainly be found in his later philosophical work, where he often discusses color, proportions, the height of a door, haptic qualities of glass, or our field of vision. This house stands for Wittgenstein's artistic revelation.
Accordingly, it's hard to emphasize its importance enough. The City of Vienna certainly did not treat this unique building well. I fought very hard from 1969 to 1971 to prevent it from being torn down, which the Viennese Office of Landmarks Preservation would have ignorantly allowed. It wasn't until I had left Vienna for New York in the late sixties and contacted ARTFORUM to write an article about the house's significance and the real threat of its destruction that anybody really took notice. At the time, Wittgenstein's nephew owned the house, and he didn't want anyone interfering with his property or his intentions of sale. The interior of the house was unknown to the public. But when the story and my photographs were picked up by the New York Times and other renowned international print media, things changed. This led to a press conference by the Office of Landmarks Preservation in Vienna to which I secretly invited architectural historians, architects, poets, and journalists I knew to write about it, which they prominently did. As a result, the Wittgenstein House was declared a landmark. Eventually, the Republic of Bulgaria bought the house in the mid-seventies, and it is currently used as the offices of their cultural attaché. But they haven't spent much time or energy restoring the building to its original appearance.
Still, the house remains undoubtedly one of the most unique examples of Viennese modernism, as well as evidence of how key figures of Viennese modernism were multitalented: Schönberg composed and painted; Kokoschka painted and wrote; Wittgenstein philosophized and built. One of the most interesting things is how, when constructing this house for his sister Margaret in the late twenties, Wittgenstein essentially ignored what was happening in modernist architecture at the time. His design process was quite different from Le Corbusier or Mies van der Rohe. As he put it: "I think I have never invented an idea—rather, it was always given to me. I have incorporated it into my endeavor to clarify thought." Everything in the house was designed by Wittgenstein down to the most minute detail and with the most exact sizing imaginable, from the proportions of the rooms to the doorknobs. In the floor slabs for example, which were made from an artificial stone mixture, he wouldn't allow there to be a single grain that was larger than one millimeter, which underscores the density he was aiming for, which is elegantly contrasted by an aesthetic of weightlessness. Using his impressive understanding of mechanics, he constructed flat panels as metal curtains to cover the window-doors at night. These very heavy elements are raised with no physical effort, floating up weightlessly through the use of perfectly balanced counterweights.
Ultimately, Wittgenstein's architecture did not invent a new vocabulary but rather used elements of the history of architecture to express entirely novel ideas. The simplicity of the house's design is not about functionality, and its austerity has nothing to do with expressing modesty. It has to do with reduction and complexity: the trained eye will discover layers of a unique beauty.
Sunday: Patrick Pulsinger takes a break from recording to explain how the jazz and electronic scenes in Vienna have merged
Musician and producer Patrick Pulsinger in his studio.
Today it's not unusual for trained musicians to cross over into electronic music, but when I started in the nineties you were either a musician or you were interested in electronic music. Trained musicians wouldn't consider what we did to be real music, and we would see them as boring and conservative. When that changed it made the whole scene much more interesting; the generations of producers and musicians who've come after me see things totally differently. I'm 43, I'm not that important anymore when it comes to breaking barriers, but back when I made my album Easy to Assemble. Hard to Take Apart I wanted to do things differently. That is, I didn't want to do a classic jazz recording with everyone playing together. Instead, for the studio sessions, I wanted various groups of two or three musicians, or sometimes just one, to be hearing something very specific of my choosing in their headphones. None of them heard the same thing. For example, I'd have a bass player with a trumpet player, which creates a totally different vibe to having them play with a drummer, for obvious reasons. Because of the relative success of Easy to Assemble, I still work with plenty of jazz musicians—Franz Hauzinger, Boris Hauf, Paul Skrepek, Werner Dafeldecker—even though my original background is, of course, in electronic music.
Vienna's jazz scene has changed dramatically in the last ten years. A lot of improvisational groups still meet weekly at certain places, but ten years ago you would have had a local horn player, drums and the rest of a more conventional instrumental set up. Celeste, a really small, classic club in the fourth district is just a basement with a stage and a bar. You sit down, and they play. There's also Porgy and Bess, which is also still open for improv sessions. Both of those places I tend to frequent, less often than before, but still. Nowadays however, a lot of electronic musicians join in too. It's hard to say whether Easy to Assemble is a record I could have made only in Vienna, but the city definitely has a healthy scene. I think it also has a lot to do with people who come here to study classical music and end up staying and discovering other scenes. Bands like König Leopold, for example, have come out of that world. In my opinion they represent an important piece of the puzzle in a city full of musicians who are becoming less and less afraid to cross over into new and different territory.
Of course, the eclectic nature of Vienna in general has influenced many, especially people from my generation. Clubs like the U4 played an extremely big role as did radio shows in the late eighties and nineties, which played everything from hip hop and garage to punk and early electronics. Every day I'd listen to this one show called the Music Box presented by Werner Geier, who had a really wide range of music so you'd hear a record by Eric B. & Rakim followed by, say, a Leather Nun record. Growing up in the countryside, it was my only source of new musical input. I still think Vienna has this openness because it was never really steered toward one specific sound; the diversity of music itself has come to define the city. At a good club the DJ will play as many different musical styles as possible.
That said, Vienna was also always in the shadows. Just a couple of kilometers from here, the West as we used to know it ended. That wasn't a very hip standpoint for pop culture but I feel that places that aren't as hip are forced to look deeper. If you're not in the spotlight you have time to do just that.
Sunday: Viennese Actionist Hermann Nitsch invites us to his castle to discuss the relationship between ethics and aesthetics
Hermann Nitsch is one of the last remaining Viennese Actionists. Despite having been jailed and forced into exile in the sixties due to his controversial blood-soaked performances, his reputation has been largely rehabilitated in the eyes of the bourgeois, marked by invitations to direct performances in the city's renowned Burgtheater and Vienna State Opera.
I fell in love with the countryside around Prinzendorf when I studied art as a young man, learning to cherish the impressionists and Van Gogh especially. Thanks to him and his cornfield paintings, I was able to "read" the beauty of this particular landscape like an impressionist piece of art. It was fascinating to be confronted with that exact same shade of yellow here northeast of Vienna. When the birds are singing here, the area is enchanted. Here, for the first time, I encountered something you might call life-affirming natural mysticism.
Knowing Prinzendorf, of course I knew its famous castle, too. I used to dream that the Austrian authorities might one day bequeath the castle to me as a perfect performance venue for my Orgien Mysterien Theater ("Orgies Mysteries Theater"). But instead of giving me the castle, the Austrian government imprisoned me three times and imposed an occupational ban on me. I had to leave my home country, so I headed for America first and then lived for a while in Bavaria. In 1971, my then wife Beate inherited some money, and amazingly the castle was up for sale. We bought it and Beate, who was a child psychologist, planned to open an institution for mentally handicapped children there. When she died in 1977, I continued to stage the theater on a regular basis—I owe this to her. I often receive visitors such as Genesis P. Orridge, who view visits to my castle as a pilgrimage of sorts. Here is where my Orgien Mysterien Theater, in which actors decked out all in white disembowel animals and handle entrails, blood and mucus in various rituals, can be most completely enacted.
I'd become persona non grata in Vienna in the late sixties. I was always following my own path and never compromised. Looking back, I have always focused on the very same things in art. I never changed. I would compare my career with that of Monet, who carried on with his very specific kind of impressionism, despite being surpassed by Malevich and the cubists and many others. However, his body of work as an impressionist remains unrivalled. Of course, I am not an art critic and not a curator. I could imagine that in Vienna plenty of artists unknown to me are working profoundly in realizing their own revolutionary concepts. Who knows? But I do have strong connections to the city of Vienna, in no small part because Arnold Schönberg came from there. The radically erotic expressionism of the Second Viennese School is very important to me. I was also schooled by phenomenology and by Martin Heidegger and Ludwig Wittgenstein. Sigmund Freud and C.G. Jung were also huge influences for me. Jung's theory of the collective unconscious in particular is essential for my theater, as is the expressionist poet Georg Trakl.
Funny enough, in 2005 I was finally invited to perform the Orgien Mysterien Theater in the famous bourgeois Wiener Burgtheater—the very stage that we always wanted to storm during the days of Viennese Actionism because it was run by fascists. It took Vienna almost thirty years to engage Claus Peymann as its director in 1986, who was the first to reinstall political theater in Austria's capital after decades of stagnation. Anyhow, my return to Vienna took place as early as 1995 when I co-directed Jules Massenete's opera Hérodiade at the Vienna State Opera. It took only two days to completely sell out all performances. I filed it under reconciliation with the Viennese bourgeoisie. My next assignment directing Parsifal was cancelled before I could start working because the then right-wing government was against it. So it took another ten years to stage the beautiful, eight-hour 122. Aktion with the participation of a big symphonic orchestra at the Burgtheater.
It seems that since Otto Muehl's recent death in Portugal, I am one of the last men standing when it comes to the Viennese Actionists. With Muehl I fostered a lifelong competitive relationship and wrote an obituary about him in ARTFORUM. I think he was a great artist, and I try not to comment on the issues involving sex with underage girls. And I would still say that the Viennese Commune was important, even though I want to stress the fact that I was never part of it and that it didn't interest me that much. Indeed art knows no boundaries. It should have total, absolute freedom, which means that the artist potentially stands in conflict with the law or the ethics of the state or religion. You know, in ancient Rome, they actually tortured and killed actors on stage, and I believe you shouldn't inhibit the artist's urge to explore new territory. In that sense, even a war could be an artwork—a cruel, gruesome, oversized happening of actionist art. But I couldn't create such an artwork because I wouldn't want to take the responsibility for such bloodshed. Of course, Wittgenstein said that ethics and aesthetics are one, and in that sense form is something fundamentally good. But perhaps if you consume form in too concentrated a mixture, it can be a poison.
Angst and aggression are basic aspects of humankind and find their expression in aesthetics, not least the impressive contours of a "Stuka" bomber, as Joseph Beuys often said. I want to be able to say: "This weapon is beautiful—but I don't want to shoot anybody with it! I don't want to kill anybody with it!" The same applies to the animals: I only use animals that are destined to be processed into food. To be more precise: art doesn't know any boundaries, but the artist's conscience does. I don't want to kill a human being and I don't want to torture an animal. I don't want to start a war just because wars look great. But we would be fools if we wouldn't see that weapons are beautiful only because they are inextricably linked with fear and aggression. Weapons are nothing else than terror and aggression cast into form. In this context Karlheinz Stockhausen's infamous statements on 9/11 come to mind. He understood that something that is obviously cruel and horrible in a bourgeois sense can at the same time be incredibly beautiful, artistically speaking. ~
Electronic Beats Festival Vienna takes place Saturday, November 23rd. This text first appeared first in Electronic Beats Magazine N° 35 (3, 2013). Read the full issue on issuu.com or in the embed below.
Published November 18, 2013. Words by A.J. Samuels, Max Dax & Michael Lutz.

redpajama_set_name: RedPajamaCommonCrawl


Face it, our current economic system is in a funk. Wilson writes: "Under certain social-economic circumstances, cultural identity can turn out to be an instrument for the expression of power of the predominant cultural system which molded it, and may change into the instrument used by the dominant tradition and its members to further its survival and improve its empowerment.
I hope extra experienced economists forgive me the dearth of exactness in my use of terminology and the broadness of my explanations, but all I'm actually trying to make clear is the elemental variations between the way conservatives and progressives assume by way of how and why the government ought to or should not be involved in the policy aspects of the economic system as it pertains to enterprise activities and the person-financial interface.
For those who look at a easy chart evaluating annual financial development charges since WWII and the top marginal revenue tax charge since that time (roughly from the Forties to in the present day), we see that decrease taxes do not correlate with larger growth charges.
Biko has mentioned it finest: "Ours is a Human Centered Tradition-It Has Man At and As Its middle." That is so true and relevantly right and resonating with many people, that it turns into simple to imbibe, digest, analyze and apply and make it real without any effort for our African folks.
Its easy to debate that expertise is dangerous when your life hasnt been dependant on it. Giving a toddler or a grown man a new likelihood at life makes all of it worth it. And as far as obesity that isnt the medicals fault and even remotely close to it, its peoples choices to decide on to eat all that fatty foods.


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LT Academy - Life Time Fitness
Professional Fitness Trainer
Trainer Externship
Corrective Exercise (CES)
Performance Enhancement (PES)
MMA Conditioning Specialist
USA Weightlifting Level 1
Introduction To Personal Training
Why Life Time Academy
Life Time Fitness Expands its Life Time Academy Program Offerings
Life Time Fitness announced that it has expanded its Life Time Academy programs to include personal training, group fitness, yoga and Pilates, partnering with the National Academy of Sports Medicine (NASM), Yoga Alliance, American Council on Exercise (ACE) and Peak Pilates to do so. The Life Time Academy is a professional certificate program that trains fitness professionals to be successful in the health and fitness industry.
Founded in April, 2011, according to Jeff Rosga, the director of the Life Time Academy, the Academy was created to fill a void Life Time Fitness saw in the health and fitness industry. "As far as Life Time as an organization, we've always had a passion for education," explained Rosga. "We saw there was a void in the industry when it comes to the quality of education, especially in the area of personal training and group fitness. A lot of it is fast-paced, online, with little interaction."
Life Time Fitness designed the Academy's program offerings to make up for these inefficiencies. Students enrolled in the Life Time Academy train one-on-one with Life Time Fitness staff at Life Time Fitness's state-of-the-art facilities. Students who graduate from the Academy will be well versed in the specifics of each individual certificate, and no experience is required to enroll. "We want to really provide an opportunity for people to be successful in an area they're passionate about," said Rosga.
Contact Us Programs Locations Meet Our Students
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Woodland Park is situated at a highly desirable location in Orlando where Lake Nona and Hunter's Creek are just minutes away. Homes in this community are built and well-designed by Taylor Morrisson. This community also offers unique home variations, with sizes ranging 2,676 sq.ft. up to 4,830 sq. ft. Some of the popular choices of homebuyers are one to two storey floor plans inspired by a variety of time periods.The amenities in Woodland Park are built to fit everyone's lifestyle.
Search all homes for sale, just like an agent. Our free, one step registration allows you to bookmark your favorite houses, save search and receive emails as soon as new homes in Woodland Park come on the market.
There is a wide selection of appealing homes situated in Woodland Park. This community offers exciting home features where you can have it customized the way you want. Not to mention this lovely community is minutes away from Medical City, Orlando International Airport, job centers, and Orlando theme parks. Woodland Park definitely has it all.
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YCES in Quarantine Episode #136: The Larry Edmunds Bookshop & the (Nearly) Lost World of Hollywood Book & Memorabilia Dealers
by Esotouric Bus Adventures | May 8, 2020 | podcast | 0 comments
You Can't Eat the Sunshine returns with an all-new Quarantine format, inviting folks who are passionate about Los Angeles history and historic preservation to join us for a conversation about the places that matter more than ever, as much of Los Angeles shelters in place under Mayor Eric Garcetti's "Safer At Home " directive.
Our special guests on May 8, 2020 are rare book dealer and historian Howard Prouty, Vintage Los Angeles curator Alison Martino and Jeff Mantor, proprietor of the historic Larry Edmunds Bookshop on Hollywood Boulevard.
The episode takes us through Hollywood's literary and retail history to highlight the importance of the Larry Edmunds Bookshop, which is today the last store standing on what was once a legendary Bookseller's Row. The shop is the beneficiary of a flood of worldwide goodwill since the recent launch of its GoFundMe campaign.
We begin with Howard Prouty's reminiscences of his 1970s visits to Hollywood bookstores, as a wide-eyed kid from Nebraska who had already built a relationship with the Larry Edmunds Bookshop as a mail order customer. He hops in the time machine to give us a sense of 1930s Hollywood bookland, populated with legendary characters like Louis Epstein (Pickwick Books), the genial salon host and rotten businessman Stanley Rose, and Rose's one-time partner Larry Edmunds, plus cameos from celebrated patrons like Nathanael West and Raymond Chandler.
Then check in on Jeff Mantor, proprietor of the Larry Edmunds Bookshop, a Hollywood landmark now in its 82nd year. Jeff shares his personal history with the shop and other lost bookstores on the Boulevard, lets us know how the GoFundMe campaign is going, and shares plans for bringing "The Lare" into the 21st century to create a virtual community where film fans around the world can mingle until the lights come on again, and afterwards.
And we talk with Alison Martino of Vintage Los Angeles about the Larry Edmunds Bookshop's role as a key location in the recreated urban landscape in Quentin Tarantino's, "Once Upon A Time in… Hollywood," some of the other legacy businesses featured in the film that are currently struggling to survive, and memories of being a pre-teen memorabilia collector, sneaking into Hollywood to score rare posters and books from Larry Edmunds, and to the great Westwood shops, too.
Links to learn more about our guests, the episode's topics, and us:
Jeff Mantor is the proprietor of the Larry Edmunds Bookshop. The store has a GoFundMe campaign, two Instagram accounts (LarryEdmunds1938, the_larebrary and a website. Join Leonard and Jessie Maltin for Cinephile Game Night in support of the bookshop on Saturday, May 9, 2020.
Howard Prouty is a dealer in rare and cool books, trading as ReadInk, Specializing in Unusual, Uncommon and Obscure Books in many (but not all) fields, with particular interest in American Culture [Popular and Unpopular], Art, Literature, Life and People from the 1920s through the 1960s. (ReadInk on Facebook. He has a pretty interesting day job sleuthing and reeling in acquisitions for the Academy of Motion Picture Arts & Sciences' Margaret Herrick Library.
Alison Martino manages the Vintage Los Angeles Facebook page, where Angelenos have strong feelings about thedemolition ofLACMA's Bing Theatre and theloss of Stan's Donuts. You'll also find her celebrating historic L.A. landmarks on Spectrum's weekly SoCal Scene. Her website is AlisonMartino.com
Hollywood Reporter: "Quentin's Really Into Margaritas" – A Guide to Tarantino's L.A. Secrets in 'Once Upon a Time in Hollywood'
The Way it Was: Fifty Years in the Southern California book trade with Louis Epstein of Pickwick Books, including his last memories of Stanley Rose.
Video from our debut LAVA Literary Salon at Musso & Frank Grill with Dan Fante.
Esotouric is our historic Los Angeles tour company, presently not operating due to the pandemic. We have a newsletter, a YouTube channel, and can be followed on Twitter, Facebook and Instagram.
Milt Luboviski, who with his wife, Git, was a long time proprietor of the Larry Edmunds bookshop
Jeanne Moreau and Donald Sutherland ready to film a scene from the 1970 Paul Mazursky film, "Alex In Wonderland," in front of the Larry Edmunds Bookshop
Larry Edmunds Bookshop today
Jeff Mantor at the front counter of the Larry Edmunds bookshop
Larry Edmunds Bookshop circa 1968
Larry Edmunds Bookshop
Louis Epstein (proprietor of PIckwick Books), Edwin Stackhouse (manager of Pickwick Books), and bookdealer, Jake Zeitlin (left to right) in the aisles at Pickwick Books.
Alison Martino & Jeff Mantor at the current Larry Edmunds Bookshop
Alison Martino & Jeff Mantor at Musso & Frank Grill for "Once Upon A Time In Hollywood," filming which recreated the Larry Edmunds Bookshop at its former Hollywood Blvd locatoin.
Alison Martino on location for "Once Upon A Time In Hollywood," at the recreated Larry Edmunds Bookshop.
Alison Martino & Jeff Mantor on location for "Once Upon A Time In Hollywood," at the recreated Larry Edmunds Bookshop.
Pickwick Books
First Edition of West's, "Day Of The Locust," which sat in the front window of Stanley Roses' bookshop
Hollywood Blvd Bookshop At Night


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NCRunners and the NCTCCCA have come together to make official All-Region and All-State awards!
Virtual meets for this weekends NCHSAA Regional Championships!
The NCHSAA Regional Deadline is approaching! Get you entries done sooner rather than later!


Black Ice Software offers several image and document imaging development tools which can be used to develop document conversion and imaging applications.
Depending on what kind of project you are developing, we have several products which will aid you in this process. Below are a series of questions which which will assist you in determining which Black Ice products are ideal for your particular imaging project.
1. Do you require a mechanism to convert any file (Word, Excel, etc.) into an image file (TIFF, JPEG, etc.)?
You will need a Black Ice printer driver which can convert any printable file into an image file. We offer several different printer drivers to meet a variety of needs.
2. Do you need a toolkit which will allow you to display, print and modify image files?
If you are looking for support for TIFF images only, such as faxing or scanning applications, please look at our TIFF SDK/ActiveX.
If you are looking for support for additional file formats, including TIFF, JPEG, EMF, etc. then please look at the Image SDK/ActiveX or the Document Imaging SDK/ActiveX.
3. Do you want to add annotations to image files?
Please look at the Annotation SDK/ActiveX.The Annotation SDK/ActiveX is available as an add-on to either the TIFF SDK/ActiveX. or Image SDK/ActiveX and is already included in the Document Imaging SDK/ActiveX.
4. Do you want to create PDF files?
If you want to convert existing image files into PDF files, please look at the Document Imaging SDK/ActiveX.
5. Do you want scanner support?
TWAIN scanning support is included in the TIFF SDK/ActiveX, Image SDK/ActiveX and the Document Imaging SDK/ActiveX.
6. Do you want to convert existing image files from one format to another?
Please look at the Image SDK/ActiveX or the Document Imaging SDK/ActiveX.Both of these toolkits contain advanced image conversion functionality.
7. Do you want to perform image clean up functions such as Punch hole removal, Black Border removal and Scan Line removal?
Please look at the Document Imaging SDK/ActiveX. which contains several high level document clean up functions, in addition to a long list of additional features.
8. Do you want to apply high level filters and effects to image files?
Please look at the Document Imaging SDK/ActiveX. which contains over 60 filters and effects.
9. Do you want to create a fax related application?
Please look at the following products: Monochrome printer driver to convert any file into a faxable tiff file, TIFF SDK/ActiveX to display, manipulate and print tiff files, especially useful for the user interface portion of your application, and the Fax C++/ActiveX for the actual fax functionality.
10. Are you looking for batch converter functionality?
Please look at the Black Ice printer drivers, which include a batch converter module which can monitor a specific email address or directory and automatically convert files to image files.
11. Are you looking for barcode read/write/decode functionality?
Please look at the Barcode SDK/ActiveX, which can be used with any Black Ice imaging toolkit or with third party imaging components.


The Work and Health Programme helps people without a job find work and stay in it. The Programme continues its roll out throughout England in 2019.
UK EMPLOYMENT SUPPORT: The Work and Health Programme was first launched in November 2017.
Back then, the employment support programme was only available in North West England and in Wales.
The Work and Health Programme will roll out across other parts of England in the first few months of 2019.
The main aim is to provide practical support to help people find a job. Once you have found a job, it then focuses on helping you to stay in work.
In most cases, it is a voluntary scheme for various groups of vulnerable people. Those with health a condition or a disability can choose whether to take part or not.
But, it becomes compulsory for some groups. If you have been out of work and claiming unemployment benefits for 24 months you must join the scheme.
Note: Work and Health Programme is replacing several other employment support projects. The most noticeable are the Work Choice and Work Programme schemes.
A carer or a former carer.
A care leaver (e.g. looked after by a local authority).
A former member of the armed forces or an armed forces reservist. Eligibility also applies for the partner of a current or former member of the armed forces.
A young person in a gang.
An ex-offender who already completed a custodial or a community sentence.
An offender who is serving a community sentence.
Dependent (or have been dependent) on drugs or alcohol if it prevents you from getting work.
Disabled (check the definition of disability under the Equality Act 2010).
Out of work and have claimed unemployment benefits for 24 months.
Someone who has been the victim of domestic violence.
Note: There is no requirement for you to have any rights to claim benefits to make an application.
To identify and focus on your employment needs.
To match your specific skills with any work that is available.
Expose your skills to prospective employers.
With specialised training to help you find a job.
To manage any health problems to reduce their impact on your work capabilities.
If you have a work coach they will confirm whether you are eligible for the Work and Health Programme. If not, make a visit to your local Jobcentre Plus branch. Tell them you would like to speak to a work coach about joining the Work and Health Programme.


Laying the foundation in February of 2009, Kellan Chaffey (bass) and Evan Brennan (guitar) had the craving to take the songs that they had been writing and present them to the masses. With a mission in mind they began their epic search for a drummer. One that could match the caliber of their awesome song writing skills. This is where Chris Rocha entered the picture. Friendship blossomed soon after he joined the band and whenever the three of them were in a room together, only the finest of tunes were produced. The next piece of the megazord the voice of Awaken The Masses, a lord Dale Tormey stepped up to the plate and took the reigns of this awesome force. Feeling that the band would benefit from one additional guitarist they called on one of Chris' closer friends, Nick Erben, to fill the slot. He shredded with the band up until March of 2012 but was sadly let go due to undisclosed reasons. In April of 2012 Zach Spencer was introduced to the band by Kellan and Dale. Having been long time friends the pieces fit perfectly and Awaken The Masses was reborn! And now with psychedelic influences! The band recorded their first 2 song demo at The Blasting Room in Fort Collins, CO and are just looking to get more of their music out into the world. They will be recording a new EP this March.