Background

The Information Commissioner's Office (the "ICO") recently fined Telegraph Media Group £30,000, after the editorial team of the Daily Telegraph sent thousands of email requests to individuals on its marketing database, on the day of the general election, urging subscribers to vote for the Conservative party.

To the surprise of a number of recipients, several taking to social media to express their dismay, a letter was sent on 7 May 2015 from the Telegraph's editor Chris Evans requesting readers to oppose the election of "the most leftwing Labour leader for a generation". The letter itself had been appended to the morning e-bulletin issued by the Telegraph.  However, subscribers who had handed over their personal details in order to receive specific updates from the Telegraph or for those subscribers with contrary political opinions, this letter was seen to be completely unsolicited.

Outcome

It was determined by the ICO that the act of promoting an election campaign (regardless of the political persuasion of the message) was in breach of the rules around direct marketing.  The ICO maintained that none of the subscribers had given their specific consent to receive this kind of email.  This was found by the ICO to be a serious contravention of the Privacy and Electronic Communications Regulations.

In mitigation of this error was the fact that the letter had only been added to the regular mailing list after a last-minute instruction from the editorial team. In their urgency to get the message out on the day of the general election, it was accepted by the head of enforcement at the ICO that the Telegraph's internal data team may not have had adequate time to carefully consider if the necessary consent had been obtained.  Furthermore, there were only 17 complaints in total to the letter, thus reducing the level of the fine.

Describing the act as negligent, ICO head of enforcement Steve Eckersley stated:

"People may well perceive the paper’s editorial content to have a political bias, but when the Telegraph emailed people directly, calling for them to vote for a political party, they crossed a line…people signed up to the Telegraph’s email service so they could catch up on the news or find out about subjects they were interested in. They did not expect to be told who they should be voting for.”

Final Comment

This latest fine by the ICO once more underlines the importance of businesses screening their marketing emails.

If a company is in doubt as to whether or not an email communication constitutes direct marketing, it should consider obtaining the specific consent of its data subjects.  This is all the more relevant as the total number of ICO fines relating to nuisance marketing in 2015 amounted to £1,135,000.