In the previous chapter, about the invention of the edited register, I stated that debates about whether or not the commercial use of the electoral register discourages people from registering to vote are unhelpful. After all, who in their right mind is going to disenfranchise themselves and risk a £1k fine just to reduce junk mail? This chapter is about someone who did just that.

On 2nd October 2000 the Human Rights Act 1998 had come into force, and on 6th October a disgruntled voter named Brian Robertson told his Electoral Registration Office that he would refuse to register to vote. He objected to the sale of his personal data to junk mail companies and argued the practice breached Article 8 of the Act. His local council (Wakefield) countered that they were only following the law and that Mr Robertson should take up the issue with the Home Office. He did so indirectly; Robertson took the council to court and the Home Office jumped to their defence.

The case went to the High Court in November 2001. Robertson's legal team argued that the sale of voters' personal data was not just a breach of the Human Rights Act 1998 but also the Data Protection Act 1998. The judge summed up the case quite nicely:

In a nutshell, the Claimant’s case is that, as a potential elector, he is being unlawfully required to tolerate the dissemination of the Register to commercial interests who utilise it for marketing purposes and that his enfranchisement cannot lawfully be made conditional upon acceptance of this practice.

And the judge agreed with Robertson. He ruled that Section 11 of the Data Protection 1998 ("the right to prevent processing for purposes of direct marketing") applies to electoral officers. The Home Office had argued that the section didn't apply because registration officers didn't process the data for direct marketing purposes; they "only" sold the data to junk mail companies. The judge found that interpretation unduly narrow.

Whether or not Robertson's registration office had also breached the Human Rights Acts was less obvious. Section 8 of the Act is short 'n sweet, so I will quote it in full:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The main argument was about whether or not targeting someone with marketing interferes with a person's right to respect for his private and family life, his home and his correspondence. The Home Office argued that a person's name and address are not protected under Article 8. The judge agreed with that in principle but concluded that the argument ignores how electoral data is used in practice. He referred to the Working Party on Electoral Procedures, which had talked about companies such as Equifax and Experian buying the electoral register from every Electoral Registration Office in the country with the aim of combining it with other data and selling the data to junk mail companies. Registration officers are fully aware of this practice and it clearly results in electors becoming targets for marketers. So, the selling of names and address does interfere with a person's right to privacy.

Next up was the question whether or not the interference was justified under Article 8.2. The Home Office argued that the benefits resulting from such disclosure are enjoyed both by consumers and suppliers, and hence by the economy and the community generally. In other words, they made the case that even if the sale of voters' personal data breached the Act, there was an overriding benefit: junk mail is good for consumers, suppliers and the economy. I am biased, of course, but the argument seems preposterous. And as the judge pointed out, the right to opt out had already been agreed in principle and the only opposition to it had come from those representing the commercial concerns in questions.

The judge finally considered Protocol 1, Article 3 of the Human Rights Act ("the right to free elections"). He agreed that that the Representation of the People Act wrongly made the right to vote conditional upon acquiescence in the sale of the Register to commercial concerns for marketing purposes, with no individual right of objection and that Robinson had established an unjustified, disproportionate restriction on his right to vote.

It is important to note that the judge only talked about using the electoral roll for direct marketing purposes (i.e. as a junk mail list) and not about the commercial use of the register in general. He would later clarify this when Robertson took the Home Secretary, Experian and Equifax to court.

The main thing that stands out to me about the case is that the Home Office argued that Section 11 of the Data Protection Act didn't apply to the sale of the electoral register and that there was an overriding concern that mandates the use of the register for direct marketing purposes. The first is either an example of "one rule for us, another rule for them" or an extreme interpretation of the Data Protection Act. And to argue that it is in the national interest to use the electoral roll as a junk mail list is just mad.

The Home Office's argument is even more curious when you consider that the right to opt out had already been agreed by parliament. The Representation of the People Act 2000 hadn't come in force yet but the debate about whether or not electors have the right to say "no" to the sale of their personal data had been settled. The Home Office could have just said: "Yes, Your Honour, the Claimant is absolutely right and we are working on fixing this." Maybe, just maybe, they were hoping to win the case and never implement Article 9 of the Representation of the People Act 2000?

Credit reference agencies

As we have seen, the parliamentary debates about the sale of voter data were mostly about who should continue to have access to the full register. Some MPs had made the case for the junk mail industry but that was pretty much rejected out of hand. Credit reference agencies registered under the Consumer Credit Act were allowed access, but debt recovery agencies were not.

In 2003, Robertson challenged the decision to allow credit reference agencies to buy a copy of the full register. Although this isn't directly relevant for us junk mail haters I want to briefly touch on the court case, as it makes it clear where the line was drawn. The case also demonstrates that it is bloody hard for individuals to challenge legislation.

The hearing took place in July 2003 and was presided by the same judge who in 2001 ruled that a person's right to vote isn't conditional on the practice of selling voters' personal details to junk mail companies. Robertson now argued that the same principle should apply to credit reference agencies and that, even if it wasn't, selling the electoral register to credit reference agencies was a breach of the Human Rights Act.

Robertson had failed to get funding for his court case and wasn't represented. He also wasn't present himself, because he was unable to travel to London. This obviously made the court case a bit of a farce. The judge clarified that his earlier ruling was specifically about the use of personal data for direct marketing purposes and he also agreed with the Home Office, Experian and Equifax that there was a public interest in allowing credit reference agencies access to the full register. Without access obtaining credit would become more difficult and costly, and there would likely be more fraud.

Would the outcome have been different if Robertson was represented? I personally doubt it, though there was at least one barrister who reckoned he could have pointed to credit reference agencies' lax attitude to identity theft. They could also have looked into curious fact that credit reference companies like Equifax and Experian are also data brokers (that was first investigated in 2020).