The Lib Dems and the E-Privacy Directive

In a blaze of publicity, the Liberal Democrats (a UK political party, for those not familiar with them) announced that party leader Nick Clegg was going to call thousands of households to talk about policy. In fact, Clegg mentioned it in a speech at the party’s conference. All good. But in a further (and from their point of view, less welcome) miniblaze of bad publicity, they were firmly told to stop. The problem, of course, was that these calls were unsolicited and automated.

The calls were quite creative: according to the BBC,

An automated 30 second voice message from Mr Clegg was played out during the early evening calls, with recipients tapping numbers on their handsets to respond to questions about education, health, tax, crime, environmental and economic policies.

Hardly the most profound of feedback, so it’s no wonder that the Lib Dems defended them as ‘market research’. However, the Information Commissioner’s Office (ICO) determined that the calls were in fact direct marketing (i.e. promoting the party). An interesting tangent is that one of the complaints to the ICO came from the Scottish National Party (SNP) who had in the past been told to stop placing automated calls by the ICO – they didn’t even have the pretend market research element, they just had the dulcet tones of Sean Connery. Quite a surreal thing to hear down the phone, I’d imagine, although not living in Scotland it would be even more eerie to hear an SNP pitch in this far-flung corner of England! Anyway, I digress. Let’s go back to the Lib Dems (who actually complained about the SNP’s Connery calls. Bit silly really).

You can read the ICO’s enforcement notice here (PDF). The contravention at issue is the breach of the European Union’s Privacy & Electronic Communications Directive (2002/58), as transposed into British law through the X regulations. Under the directive, it’s not legal to send “recorded matter for direct marketing purposes by means of an automated calling system” without the prior consent of the recipient (i.e. the poor random chap or chapette sitting at home not caring about the Lib Dems).

I do wonder about the interpretation though. However you may feel about telephone-spam, there’s a need to think seriously about the impact of such a decision on political expression. There isn’t any definition of ‘direct marketing’ in the Regulations or in the original Directive, but when adopting the regulations, it was fixed that definitions would be as in the Data Protection Acts, and from there, we get the concept that direct marketing is “any advertising or marketing material” directed to an individual. The ICO believes this includes political communications; the EU’s Article 29 Working Party finds the same (report here, see p 7), through a slightly indirect route. But in a situation where there is some genuine doubt on whether the purpose of the call was to promote or to do research, we are perhaps quite some distance from the typical direct marketing advertisement. You can perhaps see it as a spectrum with commercial advertisements as the most extreme form, then political advertisements, then genuine political research, with this particular call being somewhere between the political ad and the political research.

Indeed, under the self-regulatory system in force in Britain (the ASA being of course subject to judicial review despite its best efforts), political advertising (including direct marketing) is treated very differently to ‘normal’ advertising (including direct marketing). The Advertising Standards Authority (ASA)’s code provides that

Any advertisement or direct marketing communication, whenever published or distributed, whose principal function is to influence voters in local, regional, national or international elections or referendums is exempt from the Code.

Therefore there are fewer restrictions on political advertising or direct marketing under British regulation than on non-political advertising. Though this is for non-broadcast media, of course. In the case of broadcast media, political advertising (with a broad definition that encompasses party politics and general politically motivated advertising) isn’t permitted, despite a number of attempts to challenge this under human rights law. With this in mind, it’s still worth noting that law on broadcast advertising still distinguishes between political and ‘normal’ advertising, as the ASA does.

So is there a case for a political exemption to the electronic direct marketing rules? Or should the lead of the broadcast law be followed and unsolicited political electronic direct marketing ruled out entirely? I would suggest two initial responses: a) given the clear mess at a ECHR level and the odd finding of the House of Lords in the Animal Defenders case, I’m not sure how much scope there is to challenge the current position, and b) it may depend, as I’ve suggested below, on how far the enforcer goes in restricting political activities – where the broad interpretation of marketing includes both content as well as style, a freedom of expression-based challenge may be a more plausible option.

When it comes to Irish law, things are a bit of a mess (how often have I said that when it comes to communications legislation?). Just as in the UK, the regulations transposing the 2002 directive provide that undefinded phrases are to be defined by reference to the Data Protection Act – but the Irish Data Protection Act says:

“direct marketing” includes direct mailing other than direct mailing carried out in the course of political activities by a political party or its members, or a body established by or under statute or a candidate for election to, or a holder of, elective political office

To be honest, I’ve no idea what a court would do with that definition, particularly the reference to mailing, but it does seem to suggest a possible and significant difference from the UK position.

In the US, it was found in the 1990s that a prohibition on automatic telephone direct marketing that applied to political campaigning was constitutional: the case is Van Bergen v Minnesota 59 F.3d 1541 (8th Circuit CA). On the other hand, the recent finding in Virginia (in its Supreme Court, second time around) that the state’s anti-spam law was unconstitutional (in the case of exceptionally commercial spammer Jeremy Jaynes) and the broader debate on spam and the First Amendment is of some comparative interest and does indicate that the matter, at least as far as US law is concerned, is not settled. Indeed, in the federal CAN-SPAM Act, there’s a very broad exemption for religious or political messages, inserted for First Amendment reasons.

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