Who: Better Together 2012 Limited and the Information Commissioner’s Office (ICO)
Where: UK
When: 22 November 2013
Law stated as at: 29 November 2013
What happened:
Better Together, who are campaigning for “No” votes in the Scottish referendum, have signed an undertaking with the ICO agreeing to comply with the Privacy and Electronic Communications Regulations 2003 (PECR). This undertaking is in response to Better Together’s sending of 300,000 text messages to various individuals, without checking whether they had consented to being contacted.
These texts asked recipients to complete a survey on how they intended to vote in the referendum and were sent out by a third party marketing company in March and April 2013. However, Better Together’s failure to check whether the individuals had consented to this contact meant that the ICO received 61 complaints. In addition, Better Together had sent out a second round of texts despite having received a warning letter, addressed to them and Yes Scotland, explaining their need to comply with the law in this area.
Better Together’s actions breached Regulation 22(2) of the PECR on use of electronic mail for direct marketing purposes (in this context “electronic mail” includes texts) which states that you cannot transmit, or instigate the transmission of, unsolicited marketing material by electronic mail to an individual subscriber unless they have previously notified you that they consent to such communications.
Direct marketing is defined in section 11 of the Data Protection Act 1998 as, “the communication (by whatever means) of any advertising or marketing material which is directed to the particular individuals”. ICO takes a broad interpretation of this definition and includes the promotion of aims and ideals of political parties and other organisations. Moreover, ICO, in their guidance covering the campaigning of political parties, states that, “A telephone call which seeks an individual’s opinions in order to use that data to identify those people likely to support the party and at a future date in order to target them with marketing is likely to be direct marketing by a political party”. In this context, the survey would help Better Together to identify those who were likely to support their cause and the texts were therefore considered to be direct marketing.
Although the PECR include the option of a “soft opt in” for consent to direct marketing this does not apply to charities and political parties.
As indicated in the ICO guidance, any consent must be specific as to the intended purpose. This guidance gives the example of an individual who consents to being contacted in response to a leaflet on a local campaign issue. This consent will not allow the campaigner to contact the individual on wider campaign issues. Although this does not appear to have been under discussion in this case, as Better Together do not appear to have checked whether there were any consents, this distinction of specific consent is likely to affect the direct marketing practices of many political groups. Moreover, such bodies are required to identify themselves in each electronic mailing and provide a valid address for opt-outs.
Why this matters:
The ICO themselves have stated that the undertaking, “has set down an early marker warning the Scottish referendum campaign groups that they must comply with electronic marketing rules in the lead up to next year’s referendum vote on 18 September 2013.”
The ICO Assistant Commissioner for Scotland, Ken Macdonald, stated that, although it is understandable that political parties would want to communicate with the public, this can only take place within the confines of existing Data Privacy law.
