Latest updates - 21 February 2023
21 February 2023 - The links to the direct marketing guidance have been updated.
At a glance
- The vast majority of political messaging directed to particular individuals is considered to be direct marketing.
- If you engage in direct marketing, you have additional responsibilities under the UK GDPR and PECR.
- Genuine service communications and market research do not fall under direct marketing rules. However, the rules apply if you use these to send political campaigning messages.
- Individuals have an absolute right to object to direct marketing at any time. This includes profiling of data linked to the marketing.
In more detail
- What is direct marketing?
- When does opinion research become direct marketing?
- How does the UK GDPR’s right to object apply?
- How does PECR apply?
- How do we carry out political campaigning by post?
- How do we carry out political campaigning by electronic mail?
- Can we carry out viral political campaigning by electronic mail?
- Can we carry out political campaigning by live call?
- Can we carry out political campaigning by automated call?
The UK GDPR and PECR place additional responsibilities on you if you are processing for the purposes of direct marketing. It is important to comply with these.
Section 122 of the DPA defines ”direct marketing” as:
“the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals”.
This definition extends to any means of communication including:
- in person;
- through social media; or
- other emerging channels of communication.
It also covers any messages which include some marketing elements, even if this is not their main purpose.
Direct marketing is not limited to the offer for sale of goods or services only, but also includes the promotion of the aims and ideals of any organisation including political campaigns. This includes appeals for funds or support for a campaign, encouraging individuals to take some form of direct action or vote for a particular political party or candidate.
The vast majority of political messaging directed to particular individuals is considered to be direct marketing.
However, not all the messages you send are direct marketing. For example, messages you send for administrative purposes about an individual’s account, such as simply reminding a party or campaign group member how to contact you in case of a problem, or to check that your member’s details are correct. If a message is truly a service message and you are not attempting to market, promote or advertise anything then it does not constitute direct marketing. See our direct marketing guidance for further information.
In political campaigning, you generally only send service messages to party or campaign group members or supporters. It is difficult to see in what circumstances contacting a member of the public for political campaigning purposes would not constitute direct marketing.
In political campaigning, you can conduct genuine research to help inform your views and formulate policies, in the same way that professional market research companies do. The direct marketing rules do not apply to genuine opinion research as this does not involve the communication of advertising or marketing material.
If you collect information systematically to assess opinions, attitudes and behaviours of the population you are studying this for the purpose of research, not direct marketing. Opinion research is a study of public opinion obtained by questioning a representative sample of individuals selected from a clearly defined target audience or population. When conducted appropriately, opinion research can add value to the national debate on topics of interest, including voting intentions. Typically, individuals or organisations commission a research organisation to undertake opinion research which is commissioned either for private use or for publication. Frequently this type of research is conducted by an opinion poll.
An opinion poll is a series of questions contained within a questionnaire. It is important that questions asked in the poll are credible and fit for the purpose intended. Any questions need to be accurate, balanced, and unambiguous and must not lead research participants to a particular point of view.
However, communications claiming to be for research that are in reality intended to gain support now or at some point in the future are not genuine market or opinion research. This applies throughout the research process including proposal, data collection, analysis and reporting. Examples of this activity in political campaigning could include:
- Lobbying for political purposes under the guise of research (“plugging”). For example, a telephone call which seeks an individual’s political opinions and then urges support, invites contact, provides promotional material or uses that data to identify those people likely to support the political party or campaigner at a future date, in order to send them marketing material.
- Fund raising under the guise of research (“frugging”). For example, a telephone call which seeks an individual’s views on a particular issue in order to encourage the individual to become a donor to a campaign group or political party.
- Selling or marketing under the guise of research (“sugging”). For example, a telephone call which starts by seeking an individual’s opinions and then sells political merchandise.
- Creating false media content and commentary, including social media, under the guise of research (“mugging”). For example, an online ‘survey’ gathering opinions about various issues and using the data to target political messages at individuals.
It should be possible for you to carry out opinion research without recording the information in a way that identifies the individual respondent. If you record the responses in a way that it can be linked to the individual so you can then follow up their responses and communicate your messages to them in the future, this is direct marketing.
For further information on opinion research and polling see the Market Research Society Code and supporting regulations.
Under the UK GDPR, if you are processing personal data for direct marketing purposes you need to be aware that individuals have the right to object at any time. This includes any profiling of data that is related to direct marketing.
This is an absolute right and there are no exemptions or grounds for you to refuse. Therefore, when you receive an objection to processing for direct marketing purposes, you must stop processing the individual’s data for this purpose.
Objections to processing can be verbal or in writing, so it is important that you have an effective procedure for recognising, recording and dealing with these objections. This is likely to involve training your public facing staff and volunteers and having a mechanism to ensure individuals are not marketed to again.
You do not automatically need to erase the individual’s personal data. In most cases it is preferable to suppress their details. Suppression involves retaining just enough information about them to ensure that you respect their preference not to receive direct marketing in future. This is particularly important if you have obtained data from the electoral register. If you simply delete the data rather than add it to a suppression list, then when you obtain the register again you will have no record of those who have objected. In this situation there is a high risk that you could market to these individuals again in breach of their objection.
If you are carrying out any direct marketing by electronic means then you need to comply with the PECR rules on direct marketing, as well as the UK GDPR right to object. The rules differ depending on the method of communication (see below for detail on each method), but in many cases you can only carry out direct marketing by electronic means with the consent of the individual. See the consent section for further information on what is meant by consent.
Marketing by post is not subject to PECR. PECR only applies to electronic communications.
Post directed to particular individuals
However, mailings addressed to individuals by name are caught by the definition of “direct marketing” in nearly all circumstances – whether delivered by the Royal Mail, private delivery firms or by local volunteers. Data protection law, including the right to object, applies in these circumstances.
Post not directed to particular individuals
Leaflet-drops and mailings not directed to particular individuals are not subject to data protection law and not considered to be direct marketing. For example mail which is unaddressed, or addressed merely to “the occupier”.
However, if you know the name of the person you are mailing, you cannot avoid your obligations by simply addressing the mail to “the occupier”, as you are still processing that individual’s personal data behind the scenes.
Is the Freepost election address direct marketing?
Candidates, political parties and referendum campaigners have a right (depending on the type of election or referendum) to send an “election address” by Freepost, either addressed to each individual elector or unaddressed to each postal address. (Further guidance is available from the Electoral Commission website.) This applies to elections for the UK Parliament, Scottish Parliament, Northern Ireland Assembly, Welsh Parliament, or at a particular referendum. Although you may direct this type of Freepost mailing to particular individuals and it is subject to data protection law, it does not constitute direct marketing so the right to object does not apply.
Political campaigning – face-to-face
Face to face campaigning directed to particular individuals is covered by data protection law in much the same way as campaigning by post. PECR does not apply, but individuals have the right to object to the processing for direct marketing purposes.
The key difference is that in face-to-face campaigning, requests to object are usually made verbally rather than in writing. You should fully consider how the right to object could apply in practice, such as through targeted door-to-door canvassing. You should ensure you have appropriate training for staff and volunteers as well as procedures for recognising, recording and managing objections.
Managing verbal requests can be complicated, even more so when dealing with door-to-door canvassing where there are often several individuals in the same house. If in doubt as to whether a request is valid, it is best to be cautious and treat it as if it is.
A campaigner working for a political party canvasses door-to-door to encourage support in an upcoming Scottish Parliament election. They use a list of particular individuals who have been identified as likely swing voters who ought to be contacted. The next individual they choose to contact is Lee Smith. She knocks on the door of the house where Lee Smith lives with his brother Adam Smith. A man answers the door. They introduce themselves stating the party they work for. The man tells the campaigner that he does not wish to speak to them and that he does not wish to be contacted by the party again and promptly shuts the door.
The campaigner has been appropriately trained on the right to object but is not sure whether the man who answered the door is Lee Smith or not. They are therefore not sure whether it is a valid request.
In this example, although the right to object would legally only apply to Lee Smith as he was the one subject to the processing, the campaigner should be cautious and add both individuals to their suppression list.
You need to comply with regulation 22 of PECR, if you are campaigning by electronic mail, in addition to complying with the UK GDPR.
The term “electronic mail” has an intentionally broad meaning. It is defined as:
“any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”.
This definition includes:
- picture messages;
- video messages;
- direct messages via social media; and
- any similar message that is stored electronically.
When you are sending political campaigning messages by electronic mail, you must:
- not send electronic mail marketing to individuals, unless they have specifically consented to receiving electronic mail from you;
- not disguise or conceal your identity; and
- provide a valid contact address so they can opt-out or unsubscribe. It must be as easy to withdraw consent (opt-out or unsubscribe) as it is to give consent.
For the avoidance of doubt, the “soft opt-in” does not apply to political campaigning messages. See our direct marketing guidance for further information.
Electronic mail does not include online advertising through social media and other online platforms, even where directed at particular individuals. See section online advertising and use of social media for more information on the use of these campaigning methods.
However, electronic mail does include direct messages sent through social media or other online platforms that are stored electronically. Examples include messaging applications and web-based email platforms.
The direct marketing by electronic mail rules also apply to asking individuals to send your political messages to their family and friends. This is often known as viral marketing or “tell a friend” campaigns. You still need to comply even if you do not send the messages yourself, but instead instigate individuals to send or forward these.
This includes asking or suggesting that an individual forwards your messages to their friends without providing a reward or benefit. This still means that you are instigating them to send the message and you therefore need to comply with PECR and obtain consent. You do not necessarily have to incentivise an individual to pass on the message.
As you have no direct contact with the individual who is receiving your direct marketing, it is impossible for you to collect valid consent.
It is likely therefore that viral marketing and “tell a friend” campaigns breach PECR.
However, you are not responsible if the individual chooses, with no encouragement from you, to send their family or friends a link to a product from your website or details of your promotion or campaign.
If you are campaigning by live telephone call, you need to comply with Regulation 21 of PECR, in addition to the UK GDPR.
You can call any individual who has specifically consented to receive marketing calls from you.
You can also make live calls without consent to a number if it is not listed on the Telephone Preference Service (TPS), unless they have already told you that they do not want to be called.
In practice, this means you need to screen most call lists against the TPS register. You also need to keep your own “do not call” list of people who object or opt-out, and screen against that as well.
You must ensure that you screen against the TPS when undertaking telephone campaigns.
Where you are permitted to telephone an individual, you must:
- identify your organisation at the start of the call;
- allow your number (or an alternative contact number) to be displayed to the person receiving the call;
- if requested, provide an address or number where you can be reached free of charge to object to marketing; and
- record and respect any objection to marketing made by the individual at the time of the call.
The rules on automated marketing calls are in Regulation 19 of PECR and are stricter than for live calls. This is when you play a recorded message to the person who answers the phone. It is worth noting that many individuals have told the ICO that they consider automated calls to be extremely intrusive and even disturbing.
There are systems available that allow calls to be partly automated and partly live. For example, an automated message which is then connected to a live call if the individual presses a particular key. The rules on automated calls still apply in these circumstances.
If you wish to use automated calling you need the specific consent of the individual. Obtaining consent to make live voice calls is not sufficient and the automated nature of the calls must be clear in the information you give to individuals to inform their decision.
All automated marketing calls must include the name of your organisation and a contact address or Freephone number, and must allow your number (or alternative contact details) to be displayed to the person receiving the call.
The ICO has issued a number of enforcement notices to political parties for the use of automated calls without appropriate consent. We view this with great concern. You must ensure you comply with the rules.
- For more information on electoral law, see the Electoral Commission’s website.
- For more information on viral marketing, see our guidance.
- For more information about direct marketing using live call, see our guidance.
- For general guidance on PECR, see our Guide to Privacy and Electronic Communications Regulations.
- For further information on opinion research and polling see the Market Research Society Code and supporting regulations.
- For more guidance on direct marketing, see our guidance.