On the eve of the annual Lib Dem Conference, thousands of UK phone owners received a call to action from a pre recorded Nick Clegg. Harmless enough, perhaps, but if so, why did data privacy watchdog ICO slap an enforcement notice on them a few days later? Stephen Groom reports.
Who: Liberal Democrats
When: September 2008
Law stated as at: 30 September 2008
The Liberal Democrats launched a mass telephone consultation exercise in which 250,000 lucky UK voters in 50 key marginal constituencies received an early evening call featuring a 30 second message from leader Nick Clegg.
The format was multiple choice Q & A. Depending on which option call recipients picked and which number they pressed on their keypad, they heard a message about Lib Dem policy in areas such as education, tax, crime, economic policies and the environment. They were then asked to indicate whether they agreed with this.
Mr Clegg did not make the calls personally and the calls were not dialed manually. His message was pre-recorded and automated calling systems were used.
Communications Regulations issue?
The activity would appear on the face of it to be caught by the Privacy and Electronic Communications (EC Directive) Regulations 2003. These state at regulation 19 (1) that:
A person shall neither transmit, nor instigate the transmission of, communications comprising recorded matter for direct marketing purposes by means of an automated calling system except in the circumstances referred to in paragraph (2).
The circumstances described in Regulation 19 (2) are that the recipient of the call has previously notified the caller that for the time being they consent to such communications being sent. It is believed to be unlikely that the 250,000 recipients of Mr Clegg's call had previously notified him or his party that they consented to receiving such calls.
ICO serves Enforcement Notice
Irritated call recipients complained to the Information Commissioner's Office ("ICO"), which has now served an Enforcement Notice on the embarrassed party.
The Notice orders them to stop making automated marketing calls to non consenting recipients within 30 days or face further enforcement action.
The Lib Dems have 28 days to appeal against the Order, when they will no doubt run the argument that some party officials have already voiced. This is to the effect that the campaign was clearly for "genuine market research purposes" and was therefore not governed by the 2003 Regulations at all.
Why this matters:
Even before Mr Clegg's calls started, a formal complaint had been filed with ICO about the Lib Dem plan. The complaint was from the Scottish Nationalist Party. How they got wind of the cunning plan is not clear, but having had their knuckles rapped three years previously over a not dissimilar practice featuring the voice of Sir Sean Connery, the Scot Nats were obviously not keen to see others get off Scot free.
ICO has long made it clear that promoting a political party and/or canvassing for votes counts as marketing and enjoys no special exemptions from data privacy-related marketing controls. But what about "market research"?
In the Scot Nats case the content of the call was such that there was no available "market research not marketing" line of argument. This is an old chestnut and it has to be said that outside ICO pronouncements, which of course do not of themselves have the force of law, there is little or no clear judicial authority in the area.
US style "Primary purpose" argument?
For instance, if a call arguably has both a market research and a marketing purpose, (and we suspect the Clegg call falls into that category) does the marketing element have to be predominant or, to adopt the approach of the US CAN-SPAM email marketing legislation, does the "primary purpose" of the call have to be marketing for Regulation 19 to be engaged?
Perhaps we should be told and maybe this case, if it is fought by the Lib Dems, will provide some more clarity on the point.