The UK Information Tribunal has dismissed an appeal by the Scottish National Party (SNP) against an enforcement notice served on the party by the Information Commissioner in October 2005 for breaches of the Privacy and Electronic Communications Regulations 2003.
The Tribunal recognised that the ICO had actively made clear to all parties that promotion of a political party is marketing under the regulations, and that its decision to issue the enforcement notice was correct.
Leading up to the 2005 General election the SNP used an automated, 35-second message from Sir Sean Connery (who lives in that well known part of Scotland called the Bahamas) to contact over a quarter of a million Scottish households to urge them to vote for the SNP.
The Information Commissioner believed as a number of these calls were made to people who had either not consented to received these calls or who were registered on the Telephone Preference Service (TPS) that the calls were in clear breach of the regulations, and of the warning he had issued to all political parties prior to the election which said any research intended to persuade people how to vote, or intended to identify people for follow-up canvassing and direct mail was prohibited.
In particular, with regard to automated calls, it’s election guidance reminded the parties on that “The PECR (Privacy and Electronic Communications (EC Directive) Regulations strictly prohibit the making of such calls for marketing purposes to anyone, including corporate subscribers, without that subscriber’s prior consent” It also commented that obtaining consent to make “voice calls” would not be sufficient.
When first warned that their calls were in breach of the regulations, the SMP leader Alex Salmond, claimed the ICO was wrong and that the calls were protected under human rights law “At the most basic level, we are protected under article 10 of the European Convention on Human rights, on freedom of speech” said Salmond. The ICO disagreed.
Commenting on the Tribunal ruling, Phil Jones, Assistant Commissioner at the ICO, said: “I am pleased that the Tribunal has upheld our view that direct marketing by political parties is subject to the Regulations. It is helpful to have such a clear ruling on this matter which should help to ensure that it is quite clear to political parties that they have to comply with the Regulations. I acknowledge that the SNP tried to avoid making calls to numbers registered on the TPS. However, if their view that promotional calls by political parties are not direct marketing calls had been upheld then neither they, nor any other political party, would have to take account of the rules on unsolicited marketing.”