This very intelligent analysis, and struggle with the statute, underlines
the difficulty of bringing law into some sort of rationale relationship to a
practice that is used in many realms other than business. It also underscores
the danger of legislating specifically against  business, which this was
intended to do, without understanding what you are talking about.
     Direct marketing practitioners and theoreticians define direct marketing as
any message sent to an identifiable individual containing a request that the
individual respond. Both the number of messages despatched, the identity of the
individuals addressed, or the number of people in a group addressed must be
measurable.  The responses must be capturable, or at least measurable.  (That
is, it is NOT necessary that the success of a direct marketing exercise be
measured by IDENTIFIED individuals responding; one need only show that they are
unique.  The postal code exercise referred to above, which is unaddressed, would
be considered direct marketing by a practitioner. A "get out the vote" direct
mail campaign by a political party to a particular voting district which
preceeds a measurable increase in votes for that party's candidate, even though
one could not match voter attendance against the mailing list, at least not in
the United States, would be a direct marketing exercise.)
     The response elicited may be to give permission (let my child go on the
trip), ask for information (tell me about the new course in political theory;
Please confirm that the details we have on you in your employment record are
correct so we can pay unemployment compensation..); buy something (I'll buy one
granite block in the University's new library wing; I'll buy that sweater),
contribute (Here is 50 pounds to fight AIDS),  exercise a civic duty (Vote for
me or my candidate. Pay your taxes on time. Get your child vaccinated against
influenza.), and in every single case, most critically, provide information:
we're having a school trip; we're expanding the library and need money; there is
an election coming; it's flu season; I have something for sale.
   A review of all those examples, will, I hope, show that "direct marketing" is
not only a commercial tool.  It is a communication device used by myriads of
institutions in a developed society to convey information, fulfill their
objectives, and attempt to get those addressed to do something. It has long been
clear that within the articulation and application of the Data Protection
Principles  there is a huge anti-commercial prejudice, and the singling out of
"direct marketing" as an object of special treatment shows that.
   The examples this group are struggling with demonstrate clearly the risks of
collateral damage to civil society which can occur when one disguises
anti-commecial sentiment as civil rights legislation.  Certainly it is in
society's interests, and a parent's interest, to know that a school is working
to build new facilities and needs financial help.  Clearly the school knows the
parent's address. What possible societal benefit accrues by forcing intelligent
human beings to parce heads of needles to determine if the provision of the
information is "direct marketing"? What benefit accrues by forcing the same
parcing with determining whether this is a consented or permitted "use" when the
use should be obvious to all as one beneficial to the society?
   Someone should gather together a list of such inane exercises, a critical
mass of institutions affected by this and inflicted with the enormous expense of
undertaking the same, and descend on the DPA and Parliament and get it changed.

Paul Ticher wrote:

> This discussion has got me thinking.  I'm a primary school Governor, and I
> also
> train voluntary organisations in Data Protection, so I feel I need to know
> the answer.
>
> I think the issue for me is not so much whether the communication is
> directed to the individual, as whether it is direct marketing - where the
> Act's definition is not particularly helpful.  My understanding of direct
> marketing is that it has to be inviting the recipient to enter into a new
> transaction with the sender.  Thus a letter asking parents to contribute to
> a new classroom fund probably would be direct marketing.  A letter inviting
> them to parents' evening would not be.
>
> When our school writes to parents about trips it is usually along the lines
> of 'we need your permission to take your child out on this trip, and by the
> way could you pay a few pounds towards it.'  I don't see how anyone could
> require the school not to send them such a letter, as the school has a legal
> responsibility to get the parent's permission.  Leaving aside the question
> of whether our state schools should be so dependent on direct parental
> contributions, are we really saying that the DPA requires us to produce two
> versions of the letter, one for most parents, the other for those who have
> opted out?
>
> I think not, because the opt-out right (s.11 of the Act) states that the
> data subject can 'require' the data controller 'in writing' not to [process]
> personal data for the purpose of direct marketing.  In our school, letters
> are sent to parents via the children, by being handed out in class, and with
> no specific parent's or child's name on each letter.  I don't see where any
> processing of personal data relating to the parents is taking place.
> Letters posted to the parents at home would involve processing, of course,
> but if the request for a contribution is incidental to the request for
> permission, I'd be reluctant to view it as direct marketing.
>
> I generally find that the DPA does not force you to behave in illogical
> ways, but you sometimes have to think round the issue before you can find a
> way through.  Does the above argument make sense to others, or have I missed
> something here?
>
> Paul Ticher
> Information Management
> 0116 273 8191
> 22 Stoughton Drive North, Leicester LE5 5UB
>
> ----- Original Message -----
> From: Craig Brown <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: 26 January 2001 12:45
> Subject: Re: University fund-raising
>
> > Dave
> >
> > I don't think your children's school did get round the problem by omitting
> > your name.  Isn't this very similar to direct marketing which is defined
> as
> > the targeting of 'particular individuals'?  You were targeted as a parent.
> > I had a conversation on a similar matter with the DPC's new HE/Local
> > Government Compliance Officer yesterday and he agreed that you don't have
> to
> > be named to be targeted as a particular individual.
> >
> > Craig
> > -----------------------------------------------
> > Craig S R Brown
> > Senior Administrative Assistant
> > Registrar's Office
> > University of Leicester
> > University Road
> > Leicester
> > LE1 7RH
> >
> > Tel: 0116 252 5077     Fax: 0116 252 5000
> > E-mail: [log in to unmask]
> >
> >
> > > -----Original Message-----
> > > From: Dave Wyatt [SMTP:[log in to unmask]]
> > > Sent: Thursday, January 25, 2001 12:33 AM
> > > To:   [log in to unmask]
> > > Subject:      Re: University fund-raising
> > >
> > > Sarah
> > > As a parent and data subject I get approached for no obligation
> > > contributions to my children field trips but am assured that they will
> not
> > > be prejudiced if I fail to contribute. Like many parents I support where
> I
> > > can. But hang on I've got the good old DPA to protect me from such
> > > approaches using the 'guilt' approach. However the school solved that by
> > > omitting names and having the children bringing the letters home to whom
> > > it
> > > may concern.
> > >
> > > Reactions using DPA are usually based on volumes of requests in any
> given
> > > period or sometimes simply bad day, but opt out is a right individuals
> > > have
> > > and can choose to use so I agree it is prudent for all those looking to
> > > get
> > > a result from such marketing/fundraising to respect opt out as best
> > > practice, failure to do so simply builds resistance.
> > >
> > > David
> > >
> > >
> > >
> > >

--
Charles A. Prescott
Vice President, International Business Development & Government Affairs
Direct Marketing Association
1120 Avenue of the Americas
New York, NY 10036
USA
Tel.+1.212.790-1552
Fax.+1.212.790.1449
e-mail: [log in to unmask]
e-mail: [log in to unmask]
Website: www.the-dma.org