ADM0031 - Evidence on Algorithms in decision-making

Supplementary written evidence submitted by the
Information Commissioner’s Office (ADM0031)

During her attendance at the House of Commons Science and Technology Committee’s evidence session on 23 January 2018, the Information Commissioner was asked about the differences between political campaigning and market research. She agreed to send further detail including how the Data Protection Act 1998 (DPA) and Privacy and Electronic Communication Regulations (PECR) apply to each activity.

First, it is worth clarifying our understanding of the term ‘political campaigning’ in this context. The DPA is concerned with the processing of personal data. Much political campaigning does not involve the processing of personal data so does not fall within our regulatory remit. Where it is directed to particular individuals, the promotion of aims and ideals, such as political viewpoints, is considered to be direct marketing. We have published guidance on direct marketing as well as more specific guidance intended for those involved in political campaigning.

The DPA covers all processing of personal data including both direct marketing and market research but the rules on direct marketing by electronic means contained in PECR, do not apply to market research. Our guidance on direct marketing provides the best explanation of this:

“The direct marketing rules will not apply if an organisation

contacts customers to conduct genuine market research (for

example the purpose is to use market research to make

decisions for commercial or public policy) or contracts a

research firm to do so, as this will not involve the

communication of advertising or marketing material. However,

organisations conducting market research will still need to

comply with other provisions of the DPA, and in particular

ensure they process any individually identifiable research data

fairly, securely and only for research purposes.

“However, an organisation cannot avoid the direct marketing

rules by labelling its message as a survey or market research if it is actually trying to sell goods or services, or to collect data

to help it (or others) to contact people for marketing purposes

at a later date. This is sometimes referred to as ‘sugging’

(selling under the guise of research). If the call or message

includes any promotional material, or collects data to use in

future marketing exercises, the call or message will be for

direct marketing purposes. The organisation must say so, and

comply with the DPA and PECR direct marketing rules.”[1]

Our guidance on political campaigning contains a summary table of the methods explaining the rules around direct marketing for political purposes within the DPA and PECR. This is reproduced as an annex to this letter.

I hope this information is useful to the committee. We are happy to provide further information where helpful.

February 2018

Annex

Communication method	In summary, organisations may use this method to promote a political party, candidate or referendum campaign…
Post addressed to particular individuals	…unless the individual has asked the organisation not to write to them or not to send them marketing material by post. In addition, electoral law1 will set out whether a political party, candidate or referendum campaigner has the right to send a Freepost mailing. This specific right applies even if the individual has asked the organisation not to contact them.
Email/text and other messages to mobile phones/voicemail	…where the individual has consented to contact of that sort from the organisation for those purposes.
Fax	…where the individual has consented to contact of that sort from the organisation for those purposes.
Phone calls	…unless the organisation has grounds for believing the individual would not want it to contact them, such as TPS registration.
Automated phone calls	…where the individual has consented to contact of that sort from the organisation for those purposes.
AND in every case	...the organisation must normally identify itself in the communication and provide contact details to allow individuals to contact it and easily opt out of unwanted direct marketing. Electoral law also requires specific details to appear on election publications.[2]