(Before anyone says / thinks anything - I'm Pro-EU. Post title not a dig at Brexit insanity)
Europcar sit within an industry which makes it's money but getting people to pay more than the cost of a car for borrowing it. It's a good business model even with the shadier parts of it's industry. They're relentless spammers too - they provide no option to explicitly opt-in to marketing messages when you purchase or sign-up for their services (not even an explicit opt-out until after the fact). We'll come back to PECR in a moment.
Background
Back in 2015 I rented a car from Europcar - there was no issue with payment, no problem picking up the car, nor returning it at the end of the rental.
All well and good it seems? We've used them since on holidays in Cornwall too. Again... all seemed fine.
Last year I needed the same service whilst my own car was in the shop - booked the rental online, paid upfront, scheduled the pick up date for the Sunday afternoon before I travelled and thought nothing more of it.
When I arrived on the Sunday afternoon expecting to pick up the Merc E-class (*or similar) I was told that the vehicle was no longer available.Which was interesting because I could see the receipt on my phone, and could see the set of vehicles out back that matched the description.
I asked "Do you not have the vehicle class available?".
"Yes", the member of staff said, "but we cannot provide it to you".
Well that was always going to peak my curiosity. After various different attempts at rewording the question "Why the hell not?" in different ways to try and get an answer, they offered me a vehicle the size of my shoe.
Nope.
Drive to and from Norwich in a hand basket? No thanks. 322 miles of tall-person-comedically-cramped-into-a-hatstand? Double nope.
So I cancelled the rental and got a refund ... but no-one could tell me why. I know from past experience in that same office that they were happy to explain to me why another customer was not able to rent one of their vehicles - their staff explained why the argument started to attempt to keep my business I guess.
But they couldn't tell me - to my face - what the problem was.
I sent them a SAR later that week (oh come, on, what else did you expect from me eh?). No reply. Sent a follow up over 40 days later. This isn't to some obscure email address incidentally, this to the email address advertised on their own support, contact and T's and C's pages.
No response. Now I'm irked and have had to explain to a client why I couldn't travel to client site for the week in question. So in an NBA went...again..no response. Nothing at all. Normally that gets a "Oh sorry we lost your email in all the spam, let us sort your SAR out now". But not this time.
The Case
So I try a claim in the small claims court for failure to respond to SAR - because:
- my website booking completed - they accepted my money and my details and we entered into a deal
- they failed to notify me of a problem until after I'd travelled by train to their pick-up office
- they refused to tell me why they were no longer honouring my booking
- they spammed me every time I buy something without actually acquiring express / explicit consent. Even after telling them to piss off directly
- they had ignored my subject access request
- they continued to spam me after rejecting my custom, and without asking me whether I wanted it or not
This is their filed defence:
 |
| That's the whole defence btw |
Paragraph 1 & 2: In terms of the consent for marketing; I agree with a more general legal opinion that "Consent by definition requires some sort of positive action on behalf of the recipient." - PECR section 22 also infers a direct and explicit action on the part of the potential recipient of unsolicited marketing in order to opt-in to it. There was also no consent statement on the page when I hired any cars - so there's no reasonable effort from Europcar at all.
Europcar's approach of burying this consent and then relying on the "purchase of goods or services" exception doesn't really wash - if the explicit opt-in was available as it should be, and the customer does nothing they are indicating they have no desire to get spammed. GDPR levels the playing field and requires explicitly activated opt-in for spam (amongst other things). Roll on May 2018.
Paragraph 3 & 4: I use a different email address for each purchase so that - when a company inevitably gets hacked or stupidly decides to sell it's customer database - I can tell who the idiot was. To say there was "no information to suggest that [I] the claimant has requested ... not be used for [spam]" is a massive lie - they'd failed to acquire consent at all.
Paragraph 5: By post?! I'd sent a number of messages (including serving the particulars of the claim) via email and they try to reply by post? Surely that's just trying to hide away from making a simple effort of sending an email? Unfortunately whomever actually received this letter must have rejected it on the basis that delivery was attempted at the wrong address. I regretfully never had the opportunity to reject it.
The Result
The defendant claimed never to have received any of the documents - the same documents they were reading in order to file a defence incidentally.
The defendant also claimed that they never received the emailed SAR or NBA.
That changed the moment I produced their own auto-responders for each message I'd sent; and they subsequently settled for a menial amount. I've still not received a response to my SAR but they agreed to cease spamming me. I just wanted to know why they went back on their word.
Because no-one apparently reads the emails from their customer service inbox; if you have similar issues with Europcar in future I'd recommend to contact their relations officer, John Cooper, directly. This ensures there's no misunderstandings in communication - it is 2017 after all. Email john.cooper@europcar.com or via phone on 0116 217 3422.
Don't expect a welcoming conversation or any admission of wrongdoing - even when their error is as plain as the nose on their faces.
