The Information Tribunal has dismissed an appeal by the Scottish National Party against a finding by the Information Commissioner that the E-Privacy Regulations do not exclude from regulation the direct marketing of political parties.
The Tribunal's decision emphasised that the regulations relating to direct marketing by electronic communications apply not only to businesses, but also to political parties and other not-for-profit organisations such as charities. When such organisations conduct direct marketing activities using automated calling systems with pre-recorded messages, they must obtain prior consent from subscribers.
The term 'direct marketing' is interpreted broadly and includes communications by organisations soliciting support for a particular campaign (political or otherwise), promoting particular aims and ideals, fundraising and soliciting membership and affiliations.
The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the E-Privacy Regulations) deal with the issue of unsolicited communications (and implements Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector). Regulation 19 covers the use of automated calling systems and provides that the use of such systems for direct marketing purposes is prohibited except where the subscriber has given prior consent.
Under the E-Privacy Regulations, 'direct marketing' has the same meaning as under the Data Protection Act 1998 (DPA), namely 'the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals'.
The Information Commissioner's Office has, since rules on unsolicited marketing were first introduced in 1998, consistently made clear that it considered the promotion of a political party as marketing. Nevertheless, from November 2005 to May 2005 the Scottish National Party (SNP) conducted various political campaigns using automated calls. In February 2005 the SNP received a letter from the Commissioner's Office which included the Commissioner's 'Guidance on telephone marketing by political parties'. In the guidance, the Commissioner confirmed that, in his view, telephone calls made by a political party to promote the party or to solicit support were a marketing activity and the term marketing covered the promotion of an organisation's aims and ideals. He further confirmed that in his view a telephone call conducting genuine research by political parties, but nothing more, was not a marketing call.
Nevertheless, on six dates between 31 March and 22 April 2005, a total of almost 150,000 automated calls were made on behalf of the SNP, featuring a pre-recorded message from Sir Sean Connery, a long term SNP supporter. The calls offered to provide information on the SNP and asked the recipients to indicate if they intended to vote for the SNP.
On 5 April 2005 the Commissioner wrote again to all the major political parties enclosing updated guidance on the 'Promotion of Political Parties'. However, the SNP replied, arguing that campaigning by political parties was not included in the term direct marketing and it conducted further rounds of automated calls.
There followed various correspondence between the Commissioner and the SNP in which the Commissioner maintained his position that the term direct marketing covered the promotion of a political party and sought assurance from the SNP that it would not in future use an automated telephone calling system without consent. However the assurance was not forthcoming.
On 18 October 2005 the Commissioner served an Enforcement Notice under section 40 of the DPA requiring the SNP, in accordance with regulation 19 of the E-Privacy Regulations, to cease using an automated calling system to transmit communications comprising recorded matter for direct marketing purposes to subscribers who had not previously notified it that they consented to such communications being sent to them. The SNP appealed.
The Information Tribunal's Decision (delivered 15 May 2006)
Scope of 'direct marketing'
The Tribunal preferred the Commissioner's arguments that the E-Privacy Directive, the DPA and the E-Privacy Regulations did not exclude from regulation the direct marketing of not-for-profit organisations such as political parties. It took the following points into consideration:
- If political parties were outside the remit of regulation 19 it would be possible that political parties would be outside the remit of all the other provisions of the E-Privacy Regulations relating to direct marketing.
- It would not only be political parties which would be outside the scope of the E-Privacy Regulations but other not-for-profit organisations such as charities.
- The SNP, despite contending that regulation 19 did not apply, still chose to take steps not to make calls to individuals registered on the Telephone Preference System (which allows subscriber to opt out of receiving direct marketing calls). This appeared to the Tribunal to be an inconsistent approach to the interpretation and application of the E-Privacy Regulations, in effect accepting that parts applied and others did not.
Interference with the SNP's right to freedom of expression
The SNP argued that in any event, the interference with the SNP's right to freedom of expression (the subject of Article 10 of the European Convention on Human Rights (ECHR)) was disproportionate to any legitimate aim being pursued by the Commissioner: the Enforcement Notice failed to give adequate reasons addressing proportionality, particularly for opposition political parties. Further, the number of complaints was few and they appeared to be linked to a campaign by the SNP's political opponents.
The Commissioner argued that any interference with the right to freedom of expression was justified as it was for the purpose of protecting an individual's right to privacy (the subject of Article 8 of the ECHR). There was no limit on the content of any communication that may be made by a political party, but only on whether a particular technology could be used and there was nothing to prevent the SNP from using automated calling systems for campaigning provided the individual consented to receiving them. The Commissioner noted that the objection to automated calling systems is that they can be intrusive in relation to individual privacy, as they make possible "cold calling" on a very wide scale. This objection applied just as much (if not more so) to communications by political parties, charities and other campaigning organisations as it does to communications by commercial organisations.
The Tribunal agreed with the Commissioner's reasoning and held there was no breach of the ECHR. In particular it noted that the only limitation being placed on the SNP was as to the method of conveyance of a communication, not as to its content, and only to the extent that an individual had not previously consented to automated calls.
The Tribunal's decision seems sensible given the potentially far reaching implications of the SNP's arguments. If regulation 19 did not apply to political parties or other not-for-profit organisations, they could all make automated calls without restraint. The limitations on the use of other forms of communication covered by the E-Privacy Regulations (fax and email) could similarly not apply to these organisations. However, non-commercial use of automated calling systems is just as capable of being detrimental to individual privacy as commercial use and therefore should be subject to controls.
The Information Commissioner's good practice note on 'Charities and Marketing'