Communicating with individuals and processing personal data are an essential part of any political campaign. But it is important to ensure that this is done in a lawful, proportionate and transparent way.

What are the rules?

Broadly, there are two key regimes that organisations need to consider when handling personal data as part of their political campaigning:

  1. UK GDPR and Data Protection Act 2018 – these set out the rules in relation to the handling of individuals’ personal data generally (including the rights that individuals have in relation to their data).
  2. Privacy and Electronic Communications Regulations (“PECR”) – these set out the rules in relation to ‘direct marketing’, i.e. what organisations need to do in order to lawfully contact people with marketing or campaign material.

This note focusses on the key aspects of PECR that are relevant to campaigning. We issued a separate factsheet on key requirements under the UK GDPR and Data Protection Act 2018.

Campaigning using direct marketing

Campaigning is about communication: often political messaging will be directed at individuals and this will mean that it falls within the definition of direct marketing. While direct marketing can be an effective way of reaching people and spreading a message, it is important to be aware of the rules in this area. The ICO (which regulates data privacy law in the UK) proactively enforces these rules including fining organisations that don’t comply with them.

  1. Electronic Marketing: ‘Electronic marketing’ is a broad term that includes any marketing sent via email, text, picture or video messages, voicemails, social media messages and any similar message stored electronically.
    • The basic rule is that individuals must have actively opted into receiving electronic marketing: their consent must be sufficiently: (a) specific (i.e. relating clearly to the way in which their data is going to be used); (b) informed (individuals must know what they are consenting to); and (c) unambiguous (individuals must give you a positive indication that they are consenting, e.g. by ticking a box).
    • Individuals must be able to opt-out of marketing at any time, and each marketing email or other communication you send should include instructions on how they can opt-out.
  2. Phone Calls: You can carry out campaigning and canvassing by making live phone calls without consent provided the phone number isn’t on the Telephone Preference Service (TPS) and provided the individual hasn’t already told you that they don’t want to be called. Bear in mind that automated phone calls are a form of electronic marketing, subject to the same rules about consent above.
    • It’s important that you screen against the TPS when engaging in telephone campaigns. Where you do phone an individual, you must:
      • identify your organisation at the start of the call
      • allow your number to be displayed. (i.e. not call from a ‘Withheld’ or ‘Unknown’ number)
      • if requested, provide an address or number where you can be reached free of charge in case someone wants to object to receiving marketing from you
      • record and respect any objection to marketing made by the individual at the time of the call
    • If someone tells you that they do not want to receive marketing from you, you must stop. Individuals have an absolute right to object to marketing at any time.

Profiling and Online Marketing

Increasingly, organisations have looked to use technology to supercharge their campaigning and ensure they can reach as many people as possible, including by using profiling or other analytics techniques. For example, through the use of cookies and social media monitoring to ensure that campaigns are directed to individuals with particular interests. While this is clearly useful, it can also be intrusive, and the ICO has made clear that the use of profiling and similar techniques should be regulated and treated with caution.

We will produce a separate factsheet on this topic, outlining the key compliance issues and pitfalls in relation to profiling and analytics.

Enforcement and ICO Attention

As noted, the ICO has been taking an increasing interest in the use of data in political campaigning. In 2021, the Conservative Party received a £10,000 fine. A summary of the action that the ICO has taken in relation to data analytics for political purposes is available here.

More broadly, the ICO has voiced its concerns that the misuse of personal data can result in the disruption of the democratic process. We anticipate that the ICO will provide further guidance ahead of the next general election, likely to include a final version of its Political Campaigning Framework Code. We will provide further updates as and when the guidance is issued and as the law in this area develops.

Bates Wells can help you to navigate these rules and take steps to review your compliance ahead of an election, so that you can be comfortable and confident in your campaigning activities. For any queries about data privacy in relation to political campaigning, please contact Eleonor Duhs, Hannah Lyons or Rayhaan Vankalwala for information.

For any other queries about politics, elections and campaigning, get in touch with our team.