What the government was dissuaded from doing by industry pressure, a retired accountant has achieved through sheer determination through the courts.
Who: Brian Reid Beetson Robertson, City of Wakefield Metropolitan Council and the Home Office
Where: London
When: November/December 2001
What happened:
A classic David and Goliath battle between a retired Pontefract accountant and the keepers of the electoral role has resulted in a significant defeat for marketers. Fact one: the 1998 Data Protection Act gives everyone the legal right to object to their name and address being used for marketing purposes. Fact two: historically local authorities have made money from making their electoral roles available to marketers. Fact three: the UK Representation of the People Act 2000 empowered the government to introduce regulations allowing the editing of electoral roles before they were made available to third parties. The editing could exclude the names and addresses of those who had objected to their data being used for marketing purposes. Fact four: this would have led to Regulations requiring an "opt-out of direct marketing" box appearing on all electoral role forms put through letter boxes had it not been for successful lobbying by the Direct Marketing Association and others. This resulted in a delay in the introduction of the relevant regulations. Fact five: Mr Robertson got fed up with waiting for the rule change and took matters into his own hands. He wrote to his local authority and asked, pursuant to section 11 of the Data Protection Act 1998, that his details be removed from any copy of the electoral role made available to third parties. Wakefield refused saying they had no power to do so as no relevant regulations had been introduced. Fact six: the doubty Mr Robertson sought leave to apply for an order that this refusal be judicially reviewed. Fact seven: in November 2001 Mr Robertson was victorious before the Divisional Court. The judge held that the failure to introduce regulations requiring an electoral role form opt-out was contrary to the Data Protection Directive of 1995. As this had “direct effect” in the UK in the courts view (i.e. part of UK law even if no current UK statute or regulation so provided), this failure was contrary to UK law. It was also a breach, the Court held, of the Human Rights Act-enshrined right under Article 8 of the Convention of Human Rights, to “respect for …private and family life, ..home and ..correspondence.”
Why this matters:
Embarrassingly for the UK government, the judge found “important shortcomings in the way in which electoral role officers and the Secretary of State had been interpreting the law.” What's more, the verdict has already led to an immediate ban on further copies of the electoral role being made available to third parties. Also the chances are the ban will stay pending the introduction of suitable regulations and amended electoral role forms allowing an opt-out. The DMA had previously done well by the industry to negotiate a delay in the inevitable, but few would have imagined that the picture would be dramatically put to legal rights by one determined man.
