EU Directive 97/66 stipulates the data protection standards that must apply in the case of public telecommunications networks including issues of security, privacy and direct marketing. It was transposed by Regulations into Irish law with effect from 8th May 2002. The Regulations include the following measures to respect the rights of people who do not wish to receive unsolicited telephone calls for direct marketing purposes

· a single, national register on which people can indicate that they do not wish to receive unsolicited telephone calls to be supervised by ComReg. Direct marketers must consult this national ‘opt out’ register, and the wishes of subscribers must be respected. Individuals who wish to be included in the ‘opt-out’ register – i.e. individuals who do not wish to receive unsolicited telephone calls – should notify their telecommunications company, which will make the appropriate arrangements. Subscribers with unlisted numbers will automatically be included on the ‘opt-out’ register.

· the use of automatic dialing machines (i.e. when activated operate to make calls, including sms text messages, without human intervention) to call individual subscribers at random for direct marketing purposes, being prohibited, unless subscribers’ consent has been obtained in advance. Unsolicited fax messages to individual subscribers are likewise prohibited.

· companies, societies and other organisations are afforded some data protection rights, for the first time. Such organisations may ‘opt-out’ of receiving unsolicited telephone calls – including randomly dialed calls and unsolicited faxes – by signing up to the national ‘opt-out’ register.

During 2002 I received complaints from various sources on the use of automatic dialing machines for marketing calls. One concerned the issuing of sms text messages to mobile phones by a phone marketing company. A second concerned a company which complained that it was receiving many unsolicited fax messages from various sources. Another arose when several people complained about canvassing by a political party and by a candidate prior to the 2002 General Election where automated dialing machines were used to deliver recorded messages.

I investigated these complaints and

· the phone company immediately ceased issuing the sms text messages once I made urgent phone contact with it following receipt of the complaint. The requirements of the regulation were discussed later in detail with it and guidance was issued as to what “human intervention” meant.

· in the absence of the national “opt out” register being in operation, I could have been unable to address the matter. However, I did contact the fax issuing company who removed the company’s name from its database. The “opt out” register should, however, be up and running during 2003.

Regarding the complaints about political canvassing the question arose as to whether it was a form of direct marketing in data protection terms. Though the Data Protection Act, 1988 or the Regulations do not define direct marketing in detail it can cover a wide range of activities as

· the Council of Europe stated in 1985 that direct marketing comprises all activities which make it possible to offer goods or services or to transmit other messages to a segment of the population by post, telephone or other direct means aimed at informing or soliciting a response from the data subject as well as any service ancillary thereto.

· the Federation of European Direct Marketing (FEDMA) which represents Direct Marketing bodies in Europe indicated in 1998 that “direct marketing is a series of marketing strategies, using various delivery techniques designed to provide the receiver (consumers and companies) with information at a distance by using different means of approach e.g. broadcasting, printed press, mail, telephone, on-line-service. It is used to sell products, to deliver information, to make public announcements, for sales after-service, for customer care services, charity and political appeals”.

· the United Kingdom Information Commissioner has expressed the view that direct marketing will apply not just to the offer of goods or services, but also the promotion of an organisation's aims and ideals. This would include a charity or a political party making an appeal for funds or support and, for example, an organisation whose campaign is designed to encourage individuals to write to their MP on a particular matter or to attend a public meeting or rally.

· I recognise and accept that the need for candidates in an election to contact as many potential voters as possible is fundamental to the proper operation of the democratic process. I am, however, of the opinion that to protect the privacy of telephone subscribers a broad view should be taken particularly in the area of telecommunications contacts made without human intervention using automated equipment.

I therefore considered that the political canvassing messages came within the terms of the Regulations and as such were a form of direct marketing. I accepted that they were made in good faith but I upheld the complaints. It was appropriate for me to note in reaching my decision that the Regulations only came into force on 8th May 2002 and that the messages were transmitted on 16th May 2002. This short period placed the contravention in context and both have assured me, and I accept, that it was not their intentions to breach the regulations.

I should add that since I made my decision the Data Protection (Amendment) Act 2003 has defined direct marketing as including “direct mailing other than direct mailing carried out in the course of political activities by a political party or its members, or a body established by or under statute or a candidate for election to, or a holder of, elective political office”. This brings necessary clarity to this area.

These complaints bear out the public awareness survey findings, outlined in Appendix 2, that direct marketing, regardless of the medium used, is more likely to earn the thumbs down than the approval of people with, predictably, resistance being the strongest to direct marketing attempts via the home telephone.