by | Jun 14, 2014 | Data Protection, Direct marketing, DPA, PECR, Uncategorized | 3 comments

In what is probably a precursor to a busy period of anxious politicos making a mess of marketing law, the Conservative MP for Gloucester Richard Graham has fallen foul of both Data Protection and the Privacy and Electronic Communications Regulations. Anyone, it seems, who contacted Mr Graham was added to his marketing list, and received his campaigning emails. Given that ‘anyone’ included Labour Councillor Barry Kirby, I think it’s reasonable to assume that rather than painstakingly selecting his correspondents’ details, Mr Graham was harvesting anyone who contacted him (I’m happy to be corrected if this wasn’t the case, although it makes the appearance of Councillor Kirby on his list even more bizarre). A well-known information rights training company does a similar thing, and gets very shirty when you point out that it’s illegal.

Like many spammers caught on the hop, Mr Graham fell back on the ‘anyone can unsubscribe at any time‘ defence, and graciously offered to remove their data from his list. I apologise for making the obvious point, but it should not be too much to expect that people who make the law understand it. Taking the complainant’s names off the list is only the beginning. The Information Commissioner found Mr Graham in breach of both DP (the data was obtained unfairly because Graham did not tell people how their data was going to be used) and PECR (because the only mainstream option for electronic marketing is opt-in).

I think Mr Graham’s entire marketing list is contaminated. Removing the names of people who complained is not enough; because he did not ask for consent and did not tell people how their data was going to be used, potentially every email address he holds was obtained unfairly (DP breach) and the recipients of his marketing did not notify him that they wanted to receive it (PECR breach). In short, to put things right, the only thing that Mr Graham can do now is contact all of the people on his list, and ask for permission to send them marketing. If he doesn’t, he’s still in breach. UPDATE: as a commenter observes below, he should probably just trash it and start again.

This is not a political point. The Conservative Party’s use of misleading surveys recently attracted some well-deserved scrutiny, but few political party have clean hands on marketing. Labour, the Conservatives, the Liberal Democrats and the Scottish Nationalists all have enforcement notices against them for PECR-breaching automated phone calls – the SNP even tried to argue that stopping them from using their recorded call of Sir Sean Connery breached their human rights. There is a lot of ignorance, and a strong sense of entitlement. This won’t do. Many of us will be caught up in the political cut and thrust of the next year, but others have a right to be left alone – not pestered until they unsubscribe, but for electronic communications, left alone unless we invite contact. That’s the law.  So, ever enthusiastic to help, and with a view to a brutal Scottish Independence campaign with the 2015 General Election hard on its heels, I finish with a brief guide for the political parties on marketing:

The definition of marketing includes political messages, either party-specific, or more general. Encouraging people to vote for or against Scottish Independence is a marketing message. Encouraging people to vote, or to register to vote, even if you don’t mention the party, is a marketing message. There is no distinction between selling a fridge and selling a party.

There are specific rules for each form of communication:

AUTOMATED PHONE CALLS: Specific opt-in to automated calls.

TEXTS and EMAILS: Opt-in to receiving the specific communication. An unticked opt-out box is not valid, a pre-ticked opt-in box is not valid. If I haven’t actively told you that I want your emails or texts, I don’t want them.

LIVE CALLS: Opt-out, but you have to screen all calls against the TPS list, which you have to pay for if you don’t already, and you can’t call people who have told you not to call, even if they aren’t on the TPS.

POST: Opt-out.

There is no exemption for your members, for those who have filled in surveys, or those made a donation. Politicians made these laws. No matter inconvenient they might seem, they protect the public from being pestered by anyone with something to sell, even if it is an idea, even if it is the best idea anyone has ever had.