Pre-ticked opt in-boxes never go down well with killjoy marketing lawyers, but this time it’s pre-ticked opt-outs that are causing the problem. For what’s getting the Direct Marketing Association in a stew.
Topic: Direct marketing
Who: Local authorities, the Direct Marketing Association and The Association of Electoral Administrators
Where: UK
When: September 2004
What happened:
The DMA complained to the Association of Electoral Administrators about the "pre-ticking" of opt-out boxes in electoral registration forms being distributed to members of the public by local authorities.
The story goes back to 2001, when a retired accountant called Robinson fought a successful battle against the general availability for marketing purposes of the electoral roll. Robinson's crusade achieved a position in which two versions of the electoral roll were created.
Two electoral rolls
There was the full, unexpurgated version. This was of course available for its primary, electoral purpose and also for very limited purposes to a select band of users including credit reference agencies.
The other version of the role was the "edited version". This was a list of all voters who had not opted out, in their electoral registration form, of their name and address being used for marketing purposes. This list was available, at a price, to allcomers, including marketers.
Legal underpinning
This radical change was given legal effect by way of the Representation of the People (England and Wales) (Amendment) Regulations 2002 and from that point on electoral registration forms included a box for ticking to opt out together with an explanation as to what the effect of ticking the box would be.
In the event, despite warnings that this would mean the end of direct marketing as we knew it, the changes did not mean as drastically a reduced electoral roll as marketers feared. Probably something in the region of 21% of responders ticked their boxes to opt-out of marketing use of their details.
Continuing concerns
There were still concerns within the marketing industry, however. The 2002 Regulations seemed to allow of a situation in which, once an individual had ticked the box to stay off the edited register, the local authority could from that point on "pre-tick" that elector's particular form when it was sent out to him or her each year.
In this way, the voter needed to do nothing in order to ensure that they continued to stay off the edited register. The DMA felt that this was contrary to the spirit of the legislation. They wanted the rules to make it plain that each and every time a voter received an electoral registration form, they had to make a positive decision to opt-out of use of their name for marketing purposes and, if they did make that decision, to tick the box again.
Legal solution?
After much lobbying, the industry got what it wanted, or so at least it thought. The Representation of the People (Form of Canvass) (England and Wales) Regulations 2004 included in the prescribed format for the electoral registration form, the following:-
"Each elector must choose each year whether they want their details to be excluded from the edited register…you must decide whether to tick the box even if you have ticked it on a previous canvass form."
This seemed to dish the "pre-tickers," but as the DMA have been discovering over the last few months, this has not stopped a large proportion of the over 400 local authorities sending out pre-ticked electoral registration forms.
DMA protest
In a recent letter to the Association of Electoral Administrators ("AEA"), the DMA has protested against this practice, which has been condemned by the Electoral Commission itself in its circular EC 30/04 issued on 20 July 2004. This stated:-
"Having considered the legal position, it remains the Commission's view that to pre-print annual canvass forms with the elector's previous choice by means of a tick in the opt-out box will be a significant departure from the prescribed form. We recognise that some electoral registration offices have taken a different view and intend pre-printing the tick, and that for some administrators there are significant practical implications driving that decision. However, in the Commission's view a safer interpretation is that the law requires the elector to exercise a fresh choice each year. On that basis the opt-out box should remain blank for the elector…"
The DMA has asked the AEA to communicate this position to its members and issued a thinly veiled threat of legal challenges to electoral officers if the pre-ticking practice continues.
Why this matters:
One can understand why local authorities might find pre-ticking the opt-out box has significant practical benefits, but the 2004 Regulations do not seem to allow any interpretation other than that, each year, the voter has to be given the opportunity of making a fresh decision to opt-out if they wish to stay off the edited register. Whether local authorities will heed the Electoral Commission's advice or whether we will see a legal challenge to their activities remains to be seen.
In the meantime, marketers should keep on sending to Samantha Hambury at the DMA any pre-ticked electoral forms they receive.
