The ruling dismissed the SNP's appeal against an earlier ruling
by the Information Commissioner. It focused on the Privacy and
Electronic Communications Regulations 2003.
Although best known for putting restrictions on email spam,
these Regulations apply similar principles to forbid unsolicited
marketing calls to numbers registered on the Telephone Preference
Service (TPS). They also forbid the making of wholly automated
unsolicited marketing calls to any subscriber who has not
consented.
Leading up to the 2005 General Election the SNP made a
substantial number of automated calls to Scottish households. A
recorded message from Sir Sean Connery urged voters to support the
SNP: "If Scotland matters to you, then make it matter in
Westminster. Vote for the SNP and get Scotland’s voice heard in
London. I thank you for listening."
Calls were made to voters who had not given their consent.
Though the SNP did try to avoid making calls to numbers registered
on the TPS, a few voters received calls despite being registered
with the TPS.
The Information Commissioner's Office (ICO) had, since rules on
unsolicited marketing were first introduced in 1998, consistently
made clear that it considered the promotion of a political party as
marketing and had contacted political parties to advise them of
this on several occasions. The SNP disagreed.
As the SNP continued to make automated calls, and disputed that
such calls were subject to the Regulations, the ICO initiated
formal enforcement action. This culminated in the serving of an
Enforcement Notice. The SNP subsequently appealed the notice.
The appeal failed. The Information Tribunal wrote: "We find that
the 2003 Regulations do apply to political parties and their
campaigning activities and that the automated calls made by the SNP
were in contravention … because the SNP did not obtain the consent
of data subjects to the use of an automated calling system before
making those calls."
Phil Jones, Assistant Commissioner at the ICO, welcomed the
ruling.
"I acknowledge that the SNP tried to avoid making calls to
numbers registered on the TPS," he said. "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."
Political parties can legitimately make unsolicited live voice
marketing calls to any number not registered on TPS, unless the
subscriber has advised them directly that they do not want such
calls.
