Labour Party reprimanded by ICO over automated calls

Updated March 2010

The Labour Party has been issued with an enforcement notice by the Information Commissioner's Office (ICO) over a series of telephone calls made to 495,000 numbers in various parts of the UK considered to be Labour strongholds.

What happened?

The calls consisted of a recorded message from actress Liz Dawn, who is best known for playing Vera Duckworth in Coronation Street, urging those people who received the call to vote in the local and European elections. The ICO found that this constituted direct marketing without consent under the Privacy and Electronic Communications (EC Directive) Regulations 2003, and therefore served an enforcement notice on the Labour party, ordering them to cease making the calls or face prosecution.

Labour had previously been warned by the ICO in 2007 about making similar automated calls, but they stated that it had considered this advice from the ICO and believed that the latest calls complied with the ICO's guidelines.

The notice issued by the ICO follows similar action taken by the ICO against the Conservatives, Scottish National Party and Liberal Democrats, who had all previously been sanctioned for making automated calls. The most famous of these cases involved automated calls made by the Scottish National Party, using a recording of Sean Connery's voice to urge voters to vote for the party in the 2005 General Election.

What are the legal requirements?

Marketing by automated calling systems is governed by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECRs) and is only permitted where the subscriber receiving the calls has provided the marketer with their express consent. (Under the PECRs, the term 'subscriber' means the person who pays the bill for the use of the phone in question).

All marketing messages made through automated calls must include the identity of the caller and a contact address or freephone number for the caller. The use of automated calls for marketing purposes is viewed by the ICO as a particularly intrusive form of marketing, as recipients of the calls will not have the opportunity to speak to a live person, so will find it difficult to object.

The PECRs regulate direct marketing messages sent by electronic means – this includes marketing by telephone, fax, e-mail, text message and automated calls. The rules are far from straightforward, and vary depending on the type of subscriber who is receiving the marketing messages and the form of communication used by the marketer.

In brief, the rules under the PECRs are as follows:

• Marketers are not permitted to send faxes to individual subscribers without their express consent. Marketers are permitted to send faxes to corporate subscribers without their prior consent, but must stop sending faxes if the subscriber has raised an objection.
• Marketers should also ensure that they do not send any marketing faxes to numbers listed on the Fax Preference Service (FPS).
• Marketing to individual subscribers by e-mail or text message is also generally not permitted without their consent, though there is an exception to this rule where the individual has previously purchased or expressed an interest in the marketer's services.
• Prior consent is not required for sending marketing e-mail or text messages to corporate subscribers, though the ICO recommends that any opt outs from corporate subscribers are respected.
• When marketing by telephone, marketers are required to ensure that where an individual or corporate subscriber has indicated that they do not wish to receive any marketing calls to their number, this opt-out is respected.
• Telephone marketers are also required to ensure that they do not make any calls to numbers listed on the Telephone Preference Service (TPS) and Corporate Telephone Preference Service (CTPS). Lists of potential contracts should be screened against these lists.

In the case against the Scottish National Party, the ICO confirmed that the rules under PECRs relating to 'marketing messages' apply not just to the marketing of goods or services, but also to calls promoting an organisation's aims and ideals, such as calls which are made on behalf of a political party or charity.

Should you have any concerns in relation to the way in which your company conducts or intends to conduct marketing, please contact a member of TLT's Data Protection and Privacy team.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2010. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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