Data protection ruling halts sale of electoral rolls and provokes outcry from business

Last month's High Court ruling in the action brought by Brian Robertson against Wakefield Metropolitan Council has effectively halted the sale of electoral rolls by local authorities and has infected fresh vigour into the lobbying campaign by a wide range of interest groups including the Confederation of British Industry, British Bankers Association, Council of Mortgage Lenders and representatives from the credit reference and direct marketing industry. The Electoral Commission has since instructed its electoral registration officers not to sell any copies of the roll to commercial concerns, including credit reference agencies, pending further guidance from the government.

The much-publicised case concerned a challenge brought under the European Convention on Human Rights and the EU's Data Protection Directive by Brian Robertson against his local authority Wakefield Metropolitan Council over the disclosure of information on the electoral register for commercial use. Mr Robertson refused to add his name to the register after the Council failed to accede to his request that his personal details should not be supplied to third parties such as direct marketing businesses and credit reference agencies. The effect was to withdraw his right to vote in national and local elections. The High Court supported Mr Robertson's grounds of challenge as raising important areas of general concern. In particular, it held that:

the Council's administration of the register breached Article 14(b) of the Data Protection Directive and Section 11 of the Data Protection Act 1998 (which give individuals the right, free of charge, to object to the processing of their personal data for the purpose of direct marketing);
the sale of the register in this context (i.e., without giving voters a right to opt-out of having their details passed to third parties for commercial use) breached Article 8 of the European Convention on Human Rights (the right to respect for private and family life, home and correspondence); and

making inclusion on the register conditional on consent to the sale of data in this way also constituted unlawful interference with the right to vote, contrary to Protocol 1, Article 3 of the Convention which protects the right to free elections. Failure by local authorities to allow voters an opt-out meant that the sale of the information was disproportionate to the legitimate objective to be achieved.
Whilst a welcome victory for individuals' privacy, the case has potentially far-reaching commercial implications. It is not only use of the electoral roll that is potentially affected. A variety of registers is currently in the public domain, for example, the Register of Medical Practitioners, Register of Directors and Secretaries, Shareholders, County Court Judgments, Solicitors and Disqualified Directors. Combining information in one register with information in another can enhance its value to commercial users.

The concerns raised by industries who are lobbying include the following:

Financial institutions fear that the ruling will prevent credit reference agencies from gaining access to the electoral roll for legitimate public interest purposes;

Financial institutions and other organisations covered by the Money Laundering Regulations 1993 argue that they need such information to detect and prevent fraud and money laundering;

Credit reference agencies, and the credit industry, argue that without access to the register, it could become substantially more time consuming and difficult for individuals to obtain credit;

Organisations with an interest in authenticating individuals online argue that it is the only comprehensive national on-line identity database in the UK.
Keepers of all such public registers are likely to become more circumspect about making information accessible. Although registers are likely to continue to be available for inspection, the degree to which copies may be taken is likely to be restricted. Where copying is allowed, it is likely to be available only to those showing a genuine and legitimate interest in having access to the information.

The marketing services industry had already accepted that voters should be given the right to stop their details being sold for marketing purposes. The implementation of the Representation of the People (England & Wales) (Amendment No. 2) Regulations, on which there has been extensive public consultation since Spring 2001 and which is now scheduled to be implemented next year,will provide for two versions of the register, a full register and an "edited" version, minus voters who object to junk mail, for sale to marketing companies. However, the High Court judgment went so far as to suggest that any sale of the register to "commercial concerns" breaches human rights law. The delayed draft regulations to clarify the use of electoral register/public registers are expected early in the New Year.