Information and Communications Technology: Scottish National Party v The Information Commissioner

John Lambert

7 July 2006

This appeal considers the extent to which The Privacy and Electronic Communications (EC Directive) Regulations 2003 and, in particular, reg. 19 applies to political parties. More precisely, It is concerned with automated canvassing and polling, that is to say unsolicited telephone calls made to members of the public using electronic equipment consisting of recorded messages by well known politicians or other celebrities appealing for support or seeking information that would enable the party to identify and mobilize its potential supporters among the electorate..

The Facts

Just before the 2005 general election, the SNP (Scottish National Party) recorded the following telephone message by Sir Sean Connolly:

"Hello there. This is Sean Connery. No, its not a joke - unfortunately the real joke is the Labour party. I am calling on behalf of the Scottish National Party. Why? Because it has been acknowledged and voted to be the most trustworthy political party of them all. If Scotland matters to you, then make it matter in Westminster. Vote for the SNP and get Scotland s voice heard in London. I thank you for listening."

Connolly's message was followed by another voice:

"If you would like more information on the SNP and how we intend to make Scotland matter at Westminster, please press 1 now. If you intend to vote for the SNP at the general election, please press 2 now. Thank you."

Using the services of a company that described itself as "the leading global provider of high-volume multimedia messaging solutions", the SNP called and played Connolly's and other messages to large numbers of votes in Scotland save those who had registered under the Telephone Preference Service.

The Liberal Democrats complained to the Information Commissioner who drew the 2003 regulations and Telephone Marketing by Political Parties guidance note to the party's attention. The SNP was not deterred by that intervention. They challenged the Commissioner's interpretation of the legislation and requested a meeting with him. The Commissioner refused the request for a meeting, set out the basis of his opinion and asked the SNP not to make any more solicited calls. The party refused. After the election, the Commissioner served enforcement notices on the SNP and the Conservatives who had used similar techniques. The Conservatives accepted their notice but the SNP appealed.

The Issues
The SNP argued that:

(1)    the Directive on Privacy and Electronic Communications (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) which is implemented in the UK by the 2003 Regulations was never intended to apply to direct marketing by political parties;

(2) alternatively, the implementing Regulations did not apply to such activities; and

(3) in the further alternative, the regulations were an unwarranted interference with the Party's rights to freedom of expression guaranteed by art 10 of the European Convention on Human Rights.

The Judgment

The Information Tribunal (consisting of John Angel, Vivian Bowern and Elizabeth Hodder) rejected the appeal and upheld the enforcement notice. It fond that the 2003 Regulations do apply to political parties and their campaigning activities and that the automatic calls made by the SNP were in contravention of reg 19, because the SNP did not obtain the consent of data subjects to the use of an automated calling system before making those calls.

Reg 19 (1) of the 2003 Regulations provides:

"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)."

An automated calling system is defined by reg 18 (4) as  "a system which is capable of: -
(a) automatically initiating a sequence of calls to more than one destination in accordance with instructions stored in that system; and
(b) transmitting sounds which are not live speech for reception by persons at some or all of the destinations so called." The circumstances under paragraph (2) in which such calling is permitted are

"where the called line is that of a subscriber who has previously notified the caller that for the time being he consents to such communications being sent by, or at the instigation of, the caller on that line."

There was no real dispute that consent to voice calls was not the same as consent to automated canvassing.   "Direct marketing" is defined by s.11 (3) of the Data Protection Act 1998 as

"the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals"

and that definition is incorporated into the 2003 Regulations by reference by virtue of reg 2 (2).

The tribunal rejected the SNP's submissions for the following reasons:

(1) If it had accepted the Party's contention that political parties are outside the remit of reg 19 it would then have been possible that political parties would be outside the remit of all the other provisions of the 2003 Regulations relating to direct marketing;
(2) It would not only be political parties that would be outside the scope of those
regulations but also other not for profit making organisations such as charities;
(3) Despite contending that reg 19, the SNP still chose to take steps not to make calls to telephone preference service registered subscribers which inferred an inconsistency between the Party's oral submissions and its actual practice.
(4) Neither the SNP nor any other political party had objected to the Commissioner's  interpretation of the Regulations as they applied to political parties or for that matter those of the previous legislation that the 2003 Regulations replaced.
(5) As the only limitation being placed on the SNP was as to the method of conveyance of a communication and not as to its content, and only to the extent that an individual or data subject had not previously consented or opted-in to receiving automated calls, the tribunal could not accept that this was a breach of art 10 of the Convention.

Comment

This is a very interesting and important judgment for several reasons. First, it shows the interplay between the 2003 Regulations and the 1998 Act which implemented EC legislation.   Secondly, it explores the relationship between the  European Convention and EC and national data protection legislation. More particularly, it balances elegantly two conflicting Convention rights, namely the right to privacy under art 8 and the right to free expression under art 10.   Finally, although not fully argued, the question of what constitutes consent  has ramifications for other provisions of the Regulations, particularly reg 22 which is supposed to outlaw spam.  

Not every ground of the judgment is entirely satisfactory.   In particular, the tribunal was a bit hard on the SNP in drawing inferences from its failure to challenge previous circulars of the Information Commissioner on direct marketing by political parties and its respect for telephone preference registrations.   Political parties are not particularly well funded in this country and are still run largely by volunteers. This is all the more true of a party which by definition limits its activities to just one small region of the nation. They can be forgiven perhaps for crossing bridges when they come to them rather than using scarce resources to monitor circulars which are au fond nothing more than the opinions of the regulator which could well be wrong. Further, the SNP's respect for telephone preference opt outs was just plain common sense.  If a politician wants to canvass the vote of an elector who has gone to the trouble of registering with the Telephone Preference Service, ignoring his or her registration is not the best way of getting it.

These qualifications aside, it is not a bad decision and one that is likely to be cited in many contexts beyond political canvassing.

 

 

 

 

 

Important