Lib Dems breach of the cold calling regulations
On the morning of Wednesday 17 September 2008, I noted a media article explaining the Lib Dems plans to make 250,000 unsolicited telephone calls using a recorded message.
Having been closely involved in the detail of the relevant regulations, I recognised that this would almost certainly represent a breach. I was concerned that the ICO had perhaps relaxed guidance issued and enforced previously.
At 9:05, I rang the ICO to draw its attention to this. I asked if the proposed campaign had been approved, ready to launch an attack on this weakening of policy. I was told that there was no record of this even having been discussed. I was promised that the ICO would address the matter immediately.
Some 30 minutes later, after I had found the appropriate
number, I rang the Lib Dems temporary head office contact desk in
I had hoped that proper consideration of the situation would cause the plans to make these calls to be abandoned. Sadly I was unsuccessful.
After issuing numerous emails to Lib Dems, the media and the ICO, the following day I made contact with the "case manager" at the ICO. I was told that every effort had been made to advise the party of the regulations in general terms. No specific advice could however be given until the ICO had reviewed the text of the message and clarified the position regarding possible consent.
Further contact with the ICO enabled me to brief the media and Lib Dem members of the situation as it developed. The ICO was keen to receive confirmation from some aggrieved recipients of these calls so that it could be seen to be "proportionate" in the use of its powers.
In advance of the Enforcement Notice, the ICO had only received 6 such complaints. This was however sufficient to show that the breach had definitely occurred. The ICO advised me of its action at the same time as the news was released to the media.
My concern here was for it to be more widely recognised that unsolicited recorded message calls, that can be seen to serve some "direct marketing" purpose, are "illegal". This form of marketing is widely used with little intervention by the ICO. I believe that this is largely due to the fact that recipients very rarely report cases, so as to enable investigation and action.
If only 6 complaints were received, despite the wide publicity that drew attention to the potential illegality of this case, it is unlikely that other cases generate sufficient complaints to indicate the need for action.
I have pressed for this point to be understood and communicated, although with little success.
I had hoped that the Lib Dems would withdraw their campaign, taking the opportunity to point out that many are unaware that calls like this are "illegal" and urging other marketing organisations to follow their lead and for more recipients to report cases to the ICO.
It is not too late for the Lib Dems to make this point, as repentant sinners; however that role is not easy for a political party to adopt.
Although I seek no glory, I want other campaigners to understand that it was my telephone call to the ICO that got the ball rolling on this. This was not a formal complaint, but simply a briefing drawing attention to media coverage.
Efforts to ensure that media coverage continued helped to keep the pressure on the ICO to take action.
The complaint from the SNP gained publicity, although it cannot have had any direct bearing on the case as the investigation was already underway before it was received. It is only the complaints from non-consenting recipients that could be considered.
Although regulators such as Ofcom and the ICO attract justified criticism for their frequent failures to act, campaigners must be aware that they are not totally incompetent and ineffective. If we seek for action to be taken, we must sometimes approach these organisations in a firm but friendly and supportive manner. I believe that my approach in this case made some contribution to securing the action that was taken.
David Hickson
Friday, 26 September 2008