Author Topic: ICO view on permission to send newsletters from BCA  (Read 4923 times)

Online alastairgott

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ICO view on permission to send newsletters from BCA
« on: April 23, 2019, 07:05:36 pm »


I was sparked to get in touch with the ICO by a recent post, https://ukcaving.com/board/index.php?topic=24666.msg308493#msg308493 whilst i'm sure they are aware of why we need to communicate with members, they have made the following communication to me.


23 April 2019
Our reference: IC-13536-P6D0
Dear Mr Gott,
Thank you for your email of 16 April 2019.

I tried to call you earlier today to discuss your enquiry further, unfortunately, you were unavailable.

If the information you are sending to individuals furthers the aims and objectives of your organisation, it is the view of the Information Commissioner's Office that it would be classified as marketing. Reviewing the samples you sent in your correspondence, I believe this would fall within this category.
As such, compliance with the Privacy and Electronic Communications Regulations 2003 (PECR) is required. Within this I would refer you to our guidance on electronic mail marketing which would cover emails. In most cases you would be required to demonstrate consent before sending these emails. It would not be compliant to assume that these individuals want to receive this information due to a consensus from the national council.

Moving forward it may be worth asking new members to opt into receiving newsletters. If you are able to demonstrate this consent, and it is clear and informed, you would be able to email the individuals.


I hope this information is helpful to you. If you would like to discuss this further, please contact me on my direct number 0330 313 1786. If you need advice on a new issue you can contact us via our Helpline on 0303 123 1113 or through our live chat service. In addition, more information about the Information Commissioner’s Office and the legislation we oversee is available on our website ico.org.uk.

Yours sincerely
[Redacted by ALASTAIR]
Case Officer
Information Commissioner's Office

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Offline TheBitterEnd

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Re: ICO view on permission to send newsletters from BCA
« Reply #1 on: April 23, 2019, 07:37:38 pm »
Steady on, that's coming close to ruining a good argument with some facts  ;D

Seriously though, well done for actually taking some action and getting a response.
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Online alastairgott

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Re: ICO view on permission to send newsletters from BCA
« Reply #2 on: April 23, 2019, 08:26:23 pm »
They did try to call me and did ask for a call back. I presume they want to speak to me around the wooly edges.

such as:
I believe this would fall into this category
and
In most cases you would be required to demonstrate consent.

It might be that they have a stock email which can be sent out with a view to obtaining the required permissions in the shortest space of time.

Offline Martin Laverty

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Re: ICO view on permission to send newsletters from BCA
« Reply #3 on: April 23, 2019, 09:32:19 pm »
Quote
"If the information you are sending to individuals furthers the aims and objectives of your organisation, it is the view of the Information Commissioner's Office that it would be classified as marketing."

It is a shame that the ICO don't seem to give a definition of marketing anywhere on their website, and its search engine throws up  examples predominantly prefixed by "direct" and "unsolicited". Don't you have to have something to sell in order to engage in marketing? BCA has no products to market does it? Bob Mehew insists that the main individual benefit to most members - insurance - is not, indeed cannot be, sold to members: it is an inherent benefit to members, be they individual members or organisations with individual members.

If the newsletter proposed to send, unsolicited, to individuals (or organisations) which were not already members of their organisation, that would be a different matter...

Offline Bob Mehew

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Re: ICO view on permission to send newsletters from BCA
« Reply #4 on: April 23, 2019, 10:05:15 pm »
So Cookie was right regarding newsletters.  I trust BCA's Exec will now cease implementing the decision.

Based on ICO's advice we appear to have three categories of material, club running (eg subs reminders / General Meeting info / voting), club promotion (eg newsletter) and third party stuff (ie manufacturer's promotions).  Can BCA assume it can use members emails addresses if it has them for club running material (and that amounts to somewhere over 4000 of the 6000 plus members).  BCA needs individual's specific permission for club promotion (and that currently amounts to them signing up via BCA On Line of which under 1000 have done so).  And BCA has said it won't send out third party stuff so that is not relevant. 

Is it worth checking if club running material can be sent using an email address provided on joining the organisation?  I think the position is that these email addresses were sent to BCA by clubs as part of the club's service to their members to enable their members to also become members of BCA.  (Just as theclub also sent their postal addresses.)  Or does BCA need specific agreement direct from the member rather than indirect via the club. 

I suggest that BCA news is irrelevant to voting.   

Offline 2xw

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Re: ICO view on permission to send newsletters from BCA
« Reply #5 on: April 24, 2019, 12:59:10 am »
Brill, should be easy when members purchase online to add a tickbox (after that section is completely overhauled to look less 90s) that indicates whether they consent to marketing. Just like every other modern organisation under the sun.

Offline Jenny P

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Re: ICO view on permission to send newsletters from BCA
« Reply #6 on: April 24, 2019, 12:33:23 pm »
The whole point of the new legislation appears to be that people must opt IN to receive material such as Newsletters, they cannot just be signed up automatically unless they opt OUT.  (That's the old "Tick this box if you don't want to hear further from us ...".)

However, you can't ask them if they wish to opt in unless you can contact them in the first place, so you do have to make an initial contact with the individual to ask the question.  As 2xw says, that's easy when members purchase their membership online, i.e. they are Direct Individual Members (DIMs).  However, we have a class of membership, Club Individual Membership (CIM), where the members are signed up by virtue of being members of their club, and it's the Club which does the signing up for them.  So it's how we get at these individuals which is the problem.  DIMs are easy - it's CIMs that are the problem!

Online aricooperdavis

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Re: ICO view on permission to send newsletters from BCA
« Reply #7 on: April 24, 2019, 03:49:27 pm »
Can the responsibility to gain consent be passed on to the club? Then the CIM membership form could just have another column for whether the person has consented or not?

Online alastairgott

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Re: ICO view on permission to send newsletters from BCA
« Reply #8 on: April 24, 2019, 06:07:05 pm »
I'm sure there is nothing stopping the BCA from messaging all clubs with a link to a website where they can provide their consent.

I not sure if a club saying "you have our consent to contact all members" would be enough. by getting people to click through you will be able to ensure you have direct consent.

Again if you want me to ask the question of the person at the ICO, I can.

Or alternatively you could set up an email address of Newsletter@british-caving.org.uk and ask people to email it if they want to be kept upto date with extra information about caving in Britain. with a linked online form on the website also generating emails to the address.

and if that fails then you could find the clubs with the worst uptake rate and offer them a reward for getting the most members signed up to receive newsletters. and give the three best performing clubs either a £50 voucher for their favorite gear shop or £50 worth of bednights.
 The cost of this would be £150 but if it got only one extra person signed up from each club, then this would be 188 extra people signed up to receive newsletters. I would hasten to think that the uptake rate should be somewhat sharper than that given the reward...

someone gave a figure of how many people needed to sign up to emailed newsletters on the other topic, but i'm lost as to where to find it. but worst case 1 per club by spending £150 or best case an average of 5 per club [940 more readers] (doubling?) your reach.

Offline Jenny P

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Re: ICO view on permission to send newsletters from BCA
« Reply #9 on: April 24, 2019, 07:51:33 pm »
Can the responsibility to gain consent be passed on to the club? Then the CIM membership form could just have another column for whether the person has consented or not?

As I understand it, from myself reading a relevant bit of the regulations, no it can't.  The individual concerned must himself opt in directly with the organisation which wants to contact him, no-one else can do it for him so, unless the "list" is passed round for each individual club member to sign I don't see how this can work. 

I'm not sure if the club sending an email to each of its members individually, on behalf of BCA, and asking them to reply direct to BCA if they want to opt in to voting and/or newsletter, would be OK.  If this is acceptable, then once BCA has the reply from the member and the club knows the member has agreed to be contacted, thereafter perhaps this could be a column in the club list sent in with CIM subs payments to BCA each year.  (If the individual later changes their mind they would have to inform their club and all communications from BCA to the individual would need to have an "unsubscribe" option so it can be informed of the change.)

Alastair has made some suggestions which could be worth following up.  It might also be helpful if he were able to ask the person at the ICO about this.

At least part of the problem is the structure of BCA and its DIM/CIM membership whereby the club takes the responsibility of enrolling its individuals as CIMs in order that they may benefit from the insurance.  I don't know if there is any other body with a similar structure who we could take advice from.

Offline Cap'n Chris

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Re: ICO view on permission to send newsletters from BCA
« Reply #10 on: April 24, 2019, 08:48:16 pm »
It's good to have the clarification and there appear some obvious strategies as a result namely:

Only have DIM membership and get clubs to tell their members to join BCA direct (BCA membership secretary won't like the workload though obv.)
Or
Keep things as they are and cease bothering with a newsletter, instead....
Create something similar but post it online so people chance upon it

Offline Bob Mehew

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Re: ICO view on permission to send newsletters from BCA
« Reply #11 on: April 24, 2019, 08:48:23 pm »
Is this topic solely focused on getting the newsletter out or communicating with BCA's members about votes?  I think the two are distinctly different questions and I believe the ICO's position on the two is different.

Bluntly I rather we focused on sorting out voting which in my book is more important than the newsletter. 

One way out of this dilemma for the newsletter is for BCA to make it a condition of membership that all BCA individual membranes will receive the newsletter (be it by email or in paper).  BCA could then get it mailed out at roundly £1 / person / edition (my guess).  If individuals supply email addresses to receive the newsletter, then they can get a reduction on subs for electronic communications.  It probably does mean a lot more work for BCA's membership administrator so I think I will be hiding from Wendy for some time.

Can the responsibility to gain consent be passed on to the club? Then the CIM membership form could just have another column for whether the person has consented or not?

As I understand it, from myself reading a relevant bit of the regulations, no it can't.  The individual concerned must himself opt in directly with the organisation which wants to contact him, no-one else can do it for him so, unless the "list" is passed round for each individual club member to sign I don't see how this can work. 
As I recall, one can give agreement to another person to do all sorts of things, like allowing your solicitor to do most of the work including signing many forms on your behalf to buy your house.  Indeed even the ICO complaint form allows someone to act on your behalf.  It might need some fancy words but I am sure that provided there is a clear chain of the individual saying yes to their club saying yes to BCA, then that would be acceptable. 
The whole point of the new legislation appears to be that people must opt IN to receive material such as Newsletters, they cannot just be signed up automatically unless they opt OUT.  (That's the old "Tick this box if you don't want to hear further from us ...".)
The Royal Mail amongst other believes you can still use the "Tick this box if you don't want to hear from us". 

Offline mikem

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Re: ICO view on permission to send newsletters from BCA
« Reply #12 on: April 24, 2019, 10:06:57 pm »
This thread is only about newsletters, voting is covered elsewhere...

If you already have consent then a tickbox to unsubscribe is fine.

Offline Bob Mehew

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Re: ICO view on permission to send newsletters from BCA
« Reply #13 on: April 25, 2019, 10:36:11 am »
This thread is only about newsletters, voting is covered elsewhere...
So you to are confident BCA does not need a specific prior agreement under data protection rules to contact the individual member to get them to vote?
If you already have consent then a tickbox to unsubscribe is fine.
The set up I described had not involved prior consent.  They had cleverly reworded the question. 

Offline David Rose

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Re: ICO view on permission to send newsletters from BCA
« Reply #14 on: April 25, 2019, 11:42:28 am »
For those that don't know, I'm the BCA newsletter editor.

I'm a member of the Alpine Club. I get its newsletter by email, and I'm pretty sure I've never consented to this, though I am very happy to receive it. 

The official at the ICO quoted is probably not a very senior person, and is giving a cautious view, because naturally, they don't want to say something that might prove awkward later. I do not accept that this is a view set in stone, with any special validity. I think there is nothing in my newsletters that could be construed as marketing. There is information, and, well, news. It would be legally perverse, in my view, to join an organisation and then object to being told what it's doing.

Can anyone imagine a real world situation where a member said, 'I hate this filth, I'm going to complain to the ICO because it's being thrust without my permission into my in-box, violating my privacy?' And then the ICO took some form of punitive legal action?

I asked the ICO myself what might happen if someone did complain. The official I spoke to - by phone - said that the worst consequence would be, the BCA would be advised not to send it by email to all members in future. I think we could handle that, if it ever happened.

Meanwhile I have to say, I am getting seriously pissed off that I go to the trouble of putting this thing together but most members don't get a chance to read it. It's unpaid work, like everything else BCA volunteers do, but at the moment, less than 10 per cent of members receive it by email. If they don't know it's there, and why would they, they are unlikely to access it by the website, the only other means of getting it.

So a challenge. Is there any reader of this forum who DOESN'T want the newsletter by email? Who would actually find this problematic?

If there isn't, let's just get this done.

Meanwhile, it's time to start getting together the next issue. I would welcome some contributions. Please send them by PM or to my own email, david@davidroseuk.com 

Offline Ian Adams

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Re: ICO view on permission to send newsletters from BCA
« Reply #15 on: April 25, 2019, 12:22:39 pm »

If the information you are sending to individuals furthers the aims and objectives of your organisation, it is the view of the Information Commissioner's Office that it would be classified as marketing. Reviewing the samples you sent in your correspondence, I believe this would fall within this category.

 


Subjective and wrong.

It is very patently the case that the spirit of the legislation was never intended to prevent a “members” voluntary organisation from keeping its “members” up to date with “news”. The BCA is not a sales company, it’s not a (designed) profit making entity, it does not embody any marketing idioms and exists to serve its own membership in pursuit of the sport/hobby.

An unscrupulous (or “clever”, depending on your view point) company or organisation could certainly produce a newsletter (laden with marketing) to perhaps circumvent legislation. That is not the case with the BCA.

Arguing the semantics of the (wording of the) law is puerile – it is clearly not intended to damage legitimate interests.

I realise it won’t happen …. But …. The BCA should just send out the Newsletter to the members and “IF” the ICO take action, the BCA should defend the decision to the ends of the Earth. This kind of imposed bullshit by jobsworths/militants is well beyond a joke and it is time “normal” people stood up to it.

In any event, the BCA newsletter is excellent. Perhaps David would consider writing any article on the ICO, the GDPR and all the associated crap.


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Offline David Rose

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Re: ICO view on permission to send newsletters from BCA
« Reply #16 on: April 25, 2019, 12:40:46 pm »
Good idea. I will.

Offline andrewmc

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Re: ICO view on permission to send newsletters from BCA
« Reply #17 on: April 25, 2019, 12:52:50 pm »
It IS true that the newsletter should avoid putting material in which is clearly 'marketing' in the sense of 'promoting the aims and objectives of the organisation'. BCA council clearly believed not that we should be breaking the law but that the newsletter was not _inherently_ or necessarily marketing.

I'm sure David can simply put news and information, not campaigning material, in the newsletter. If this proves to be a massive challenge then he can produce a 'redacted' version of the newsletter with some blanks in marked 'you do not receive this part of the newsletter because you have not consented to receiving marketing material'.

I think effectively communicating with members is equally as important as voting, and thus getting some BCA communications to all members is important.

It should also be noted that the court decision which lead to the ICO advice that PECR applies to non-profit and charitable organizations in this way was when the SNP were sending out political campaigning material, not their members' newsletter.

Offline darren

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Re: ICO view on permission to send newsletters from BCA
« Reply #18 on: April 25, 2019, 01:03:54 pm »
https://ico.org.uk/action-weve-taken/enforcement/?facet_sector=&facet_date=&date_from=&date_to=

Not a lot of clubs and the like in the list.

There are options for undertakings and enforcement notices that include no financial penalty and would seem the most likely action ( yes Newstuff I realise this is conj
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Offline droid

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Re: ICO view on permission to send newsletters from BCA
« Reply #19 on: April 25, 2019, 01:05:28 pm »
Is CRoW 'information' political campaigning material?

Asking for a friend.


 :halo:
No longer 'Exceptionally antagonistic' 'Deliberately inflammatory'

Offline andrewmc

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Re: ICO view on permission to send newsletters from BCA
« Reply #20 on: April 25, 2019, 01:32:42 pm »
Is CRoW 'information' political campaigning material?

Asking for a friend.

 :halo:

If the content was a piece purely included to encourage people to believe CROW applied/did not apply to caving, or encouraging members to send donations/letters to their MPs/vote in a particular way, I would suggest that could be 'promoting the aims and objectives of the organisation' and require consent.

If the content was simply unbiased reporting on the current state of the law, or reporting the results of a members' referendum, then I would suggest it did not...

Of course despite ICO guidance only a court can make a final judgement (much like CROW, of course  :tease: )

The GDPR subcommittee proposed at the last BCA Council meeting could of course attempt to make such judgements on individual pieces that might stray close to the line.

Offline andrewmc

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Re: ICO view on permission to send newsletters from BCA
« Reply #21 on: April 25, 2019, 01:34:58 pm »
So you to are confident BCA does not need a specific prior agreement under data protection rules to contact the individual member to get them to vote?

Off-topic, but yes, under either the legal or legitimate interest grounds.

Offline Martin Laverty

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Re: ICO view on permission to send newsletters from BCA
« Reply #22 on: April 25, 2019, 04:21:35 pm »
I can but agree with David Rose and Ian Adams in their posts but perhaps there are some oddities in what they (and I, before) said.

1   Is it right that an organisation refrain from 'promoting the aims and objectives of the organisation' in its newsletter? Does not that make the editor's job in producing a newsletter of real interest to its readers far harder than it need be? Wouldn't it be good to be able to include for and against arguments for any contentious issues from their proponents?

2  Is it right that all marketing be excluded? 'Cavefest' comes to mind, an event which is independently run (and is not without critics of its management), as does the reviewing of gear (surely of interest to members, but open to accusations of marketing).

The old BCRA Newletter/Caves & Caving/Speleology included advertising, and opinion pieces, and so much of general interest that it merited a cover price for external sales. I am sure I can't be the only one to miss its complementing Descent...We have lost a lot of the expedition reports which used to come from Ghar Parau trips as a condition of funding...

I can also identify with problems in sending out material to keep members up to date with an organisation. For example, I will not be alone in being considered a life time member of a university I attended. Many years after I  left, the American model of alumni funding reached the UK and marketing departments sprouted at university,  departmental, and sometimes more, levels - all started sending, usually glossy, publications - increasingly with appeals to support various projects. Now, that was before PECR, but I was glad to eventually find means to opt-out, but with the option of accessing online, and archived, versions.

Whether clubs can, do, or should pass on email addresses to BCA is a whole other can of worms, but they should make it clear that CIM is full, active, voting membership of BCA and not just about insurance.

Here's a suggestion that I don't remember seeing: On BCA first being given an individual's email address, a welcome email is sent which 1) validates that address 2) asks the new addressee to sign on to the BCA Online website address to confirm their email preferences (currently for administrative and general interest categories, an explicit newsletter option could be added), which otherwise default to no electronic contact. That would cover both CIMs and DIMs, and satisfy ICO. On renewal of membership, existing preferences should carry over, but with a reminder that the option to change is always there.


Offline David Rose

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Re: ICO view on permission to send newsletters from BCA
« Reply #23 on: April 25, 2019, 04:28:54 pm »
To Droid's "friend":

The CROW campaign is now settled BCA policy. Because of Brexit, the campaign (of which I am convenor) is really unable to do anything, so my last reports to council and the newsletter have said as much.

In any event, if there was something happening, I would simply make a factual report. That is not marketing, in my view, and I don't think the ICO would see it as such.

Offline David Rose

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Re: ICO view on permission to send newsletters from BCA
« Reply #24 on: April 25, 2019, 04:31:39 pm »
Martin writes:

"Here's a suggestion that I don't remember seeing: On BCA first being given an individual's email address, a welcome email is sent which 1) validates that address 2) asks the new addressee to sign on to the BCA Online website address to confirm their email preferences (currently for administrative and general interest categories, an explicit newsletter option could be added), which otherwise default to no electronic contact. That would cover both CIMs and DIMs, and satisfy ICO. On renewal of membership, existing preferences should carry over, but with a reminder that the option to change is always there".

I think that is a possibility. Maybe at the start of next year all members, new and old, could be asked to do this?