On September 25, 2008, the UK Information Commissioner gave the Liberal Democrats 30 days to cease making automated direct dialling calls to subscribers who had not given their prior consent to receive these calls. The Party leader, Nick Clegg featured on the message and he sought to canvass voters to support the Party. David Smith, Deputy Information Commissioner, said that “the promotion of a political party counts as marketing … many people find unsolicited automated calls particularly intrusive and annoying so it is important that any organisation making such calls ensures that individuals have given their consent before they are targeted”. The source of the rule requiring prior consent is found in two data protection directives, as well as other EU laws (e.g. the E Commerce directive) that specifically seek to limit what are known in EU jargon as an “unsolicited commercial communication” – direct dialled automated messages and spam are the best examples.
The Information Tribunal, in a 2006 decision involving the Scottish National Party upheld the Information Commissioner’s view that direct marketing applies “not just to the offer for sale of goods or services, but also the promotion of an organisation’s aims and ideals. This would include a charity or a political party making an appeal for funds or support ….”. The SNP was held to have infringed the Data Protection Telecommunications Directive when subscribers picked up the phone and received an automated recorded message from Sir Sean Connery praising the SNP as a “trustworthy” political party and inviting support at the ballot box.
However, if we look at the position in Ireland, a different regime is in place. After the Irish Data Protection Commissioner found against Dail member Sean Ardagh’s “cold calls” in 2002, the 2003 Act amended the definition of “direct marketing” so as to mean that it “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”. This “carve-out” gives political parties and candidates the right to use any marketing device, howsoever obtrusive, without any redress being available to the person being marketed. Because the data protection legislation itself contains the “carve-out”, the Data Protection Commissioner cannot intervene in the same manner as his UK counterpart.
But the definition of “direct marketing” in Irish law is clearly open to challenge by any aggrieved Irish telephone subscriber. Irish law may not be compliant with the Telecommunications Data Protection Directive for one simple reason. In the SNP case, the Information Tribunal specifically rejected the argument that a political message fell outside the phrase, “an unsolicited commercial communication”, on the basis that European data protection directives are not solely concerned with internal market matters but address wider privacy concerns. In making automated cold calls without the prior consent of the subscriber, whether for fundraising or garnering electoral support, the SNP was held to have breached both data protection directives and the transposing UK legislation.
In any Irish court challenge, the judge would be required to interpret the Directives, not the transposing Irish legislation, and if the SNP reasoning is followed, nuisance calls from candidates and parties, and political spam, in Ireland, would be outlawed.
Bob Clark, Professor of Law, School of Law, University College Dublin and Consultant to Arthur Cox, Technology and Life Sciences
