NOV 2007 - Are Public Registers Public?
A fundamental question to be answered is whether a public register is in place to allow the public access to the register’s contents, or whether it is a register of information about the public.
The Marketing Association suggests there has been a gradual erosion of access to public information under the guise that Government is protecting personal privacy or human rights. We contend that human rights are best served by allowing open communication between consenting parties.
Below is a copy of the Marketing Association's full submission to the Law Commission.
SUBMISSION to the Law Commission
on Review of Privacy : Public Registers
Issue Paper – NZLC MP 18
Submission made by:
Keith W Norris
Chief Executive
Marketing Association
P O Box 47681
Ponsonby
AUCKLAND
2 November 2007
1. This submission is made by:
Keith W. Norris
Chief Executive
Marketing Association
P O Box 47681
Ponsonby
AUCKLAND
Tel: 361 7762 (business) email: keith@marketing.org.nz
The Marketing Association, formerly the Direct Marketing Association, was formed
in 1974. It represents over 4,200 marketers and over 400 New Zealand
organisations, including airlines, financial institutions, major retailers,
telecommunications companies, Government Ministries, utilities and data
management organisations.
2. A major part of our activities includes establishing and promoting codes of
practice and best practice guidelines for all forms of marketing communication.
The Marketing Association has been the strongest advocate for responsible data
management in the commercial sector. We have instigated best practice
guidelines which complement the Code of Practice for Direct Marketing in New
Zealand (see attachments). For the past 15 years, the Marketing Association
has also operated a Name Removal Register to enable ordinary New Zealanders
to remove themselves from unsolicited mail, telephone and fax marketing
databases.
This is achieved by members accessing the Register before every list usage and suppressing the names of people on the Register.
3. This submission is made on behalf of the members of the Marketing Association.
We wish to make a personal presentation in support of our submission should
this opportunity be available.
4. BACKGROUND
4.1
Marketing communications around the globe have changed dramatically over the last 20 years. Formerly, advertising and marketing messages were traditionally delivered over broadcast media, e.g. television, radio, newsprint, to a mass audience. Sophisticated computer technology now enables organisations to communicate with their customers and prospects on a one-to-one basis. The ‘engine-room’ of these communications is the customer database.
4.2
Typically, a marketing database is built by combining transactional information from customer records with publicly available data so that an accurate record of customer information and contact details is maintained. There is a popular misconception that marketing records contain a myriad of personal and sensitive information. This is not the case. Such information is (a) difficult to collect, (b) extremely expensive to maintain, and (c) usually irrelevant to the relationship.
4.3
Public registers, such as the Electoral Roll, Motor Vehicle Registers and Valuation data, were all sources of valuable information for database marketers. This information has been used to maintain accurate records of individual customers and prospects. Accuracy is vital in such relationships and indicates a respect for personal privacy. These sources have largely been eroded by changes in legislation (including the recent Land Transport Amendment Bill).
5. ARE PUBLIC REGISTERS PUBLIC?
5.1
A fundamental question to be answered is whether a Public Register is in place to allow the public access to the Register’s contents, or whether it is a Register of information about the public. We suggest there has been a gradual erosion of access to public information under the guise that Government is protecting personal privacy or human rights. We contend that human rights are best served by allowing open communication between consenting parties.
5.2
The marketing community in New Zealand are generally sensitive to individual privacy. An example of this is the system whereby marketers carrying out unsolicited mailing campaigns can access the Marketing Association’s Name Removal Register, which contains the details of some 40,000+ New Zealanders who do not wish to receive unsolicited mail. Those whose names appear on the Register are then eliminated from the mailing. A very important addition to this Register since January 2005 has been the New Zealand Deaths Register. The result has been that the names on this latter Register have also been eliminated from mailings. This surely indicates a responsible attitude to the use of public data.
5.3
The use of the Death Register data illustrates a bulk use of public register data which creates a clear benefit to the public. It eliminates mail being sent to deceased persons. To remove this kind of access will lead to an increase, not a decrease, in unwanted mail and would prevent the delivery of distressing mail to the bereaved.
6. SELF REGULATION
6.1
Direct Marketing is based on creating and maintaining a relationship with customers that is based on trust and goodwill. Marketers understand this, and consequently members of the Marketing Association agree to abide by a strict Code of Practice and a number of Best Practice Guidelines dealing with the collection, storage and use of personal data.
6.2
There have been one or two isolated incidents of indiscriminate use of the Motor Vehicle Registers for direct marketing purposes, but is it reasonable to punish the whole marketing community for the inappropriate actions of one or two organisations? It would seem if the Registrar were given the power in such instances to withdraw access by such individual organisations on the basis of their inappropriate behaviour.
6.3
The Land Transport Amendment Act no. 4, currently in Bill form, is an example of permitting secondary uses to defined users. We argue that the approach could have been expanded to permit users rather than uses.
6.4
By international standards, New Zealand has an excellent record for marketing self regulation. The Codes of the Advertising Standards Authority and of the Marketing Association are clear evidence of a commitment to responsible corporate behaviour. Many would argue that there is far too much State interference in the conduct of people’s business and personal lives. As a consequence, we live more and more in a “Nanny state” environment where personal responsibility is becoming a thing of the past.
6.5
We conduct random audits of members’ data practices and take action to correct the processes of those who do not meet our standards. Our focus is on quality not quantity.
6.6
Parallels could be drawn with the anti spam legislation. The worst and most indiscriminate junk mail is generated off shore, as is most spam. Legislation does not stop their activities but could diminish the ability of our members to filter out those who should not be contacted [the deceased and bereaved] or do not wish to be contacted.
7. PERSONAL PRIVACY – THE “HARM” TEST
7.1
It is worth noting that complaints under The Privacy Act 1993 require that breaches of the Act in themselves are not grounds for a successful complaint. There needs to be evidence of “harm” caused by that breach. Those who argue for restricted use of the public registers talk about annoyance at individual details being accessed for marketing purposes. There is a world of difference between “annoyance” and “harm”. There is no evidence at all of marketing campaigns causing harm to individuals and marketers seek to avoid annoyance at all costs since this is detrimental to their purpose.
7.2
Under the heading of ‘Annoyance’, the discussion document (para 216) states that information from public registers is also used for the purposes of telemarketing (unsolicited telephone calls from companies and organisations). Paragraph 225 stated that “telemarketing was the most negatively perceived advertising or promotional channel”.
7.3
We are not aware of any evidence of public registers being used as the source for unsolicited telemarketing. Neither have we seen any empirical evidence of the number of complaints about the use of public registers for marketing purposes.
7.4
It is also worth noting that the Colmar Brunton Consumer Media Preference 2005 study (footnote 161) found that “only 13% of respondents considered receiving advertising by way of addressed mail to be annoying and irritating”. In other words, 87% of New Zealanders are comfortable with receiving marketing communications in this way.
8. OPTIONS FOR REFORM
8.1
Of the four options for the regulation of Public registers which are suggested in paragraph 244, our preference would be to support Option 2, although we believe that the administration of individual public registers should be carried out by the relevant Government department and separated from policy decision-making.
8.2
This would allow individual New Zealanders the right to “opt out” of their information being available for any purpose other than that for which it was originally collected. The principle of respecting requests to “opt out” of receiving unsolicited marketing material is already well established in the New Zealand marketing community.
8.3
We support the statement made in paragraph 279 that this model will allow people to express their preferences rather than assuming that all subjects share the same concerns about access to Public registers.
8.4
We believe it would be unwise to create a blanket Public Register statute since the Registers are set up for widely diverse purposes and administered by a range of different public bodies.
8.5
Assumptions have been made regarding mischiefs and harms which may not exist.
8.6
There has been a perception in Privacy regulation that it is wrong to compel information from individuals and then permit the information to be used for a range of different purposes.
8.7
However much of the alleged “wrong” can be redressed by giving control back to the individual from whom the information is compelled. We submit that opting out does this in a way which mitigates the perceived and presumed wrong. We refer back to the statistical information drawn from the 2005 study and assert that if the Opt out option were adopted it is likely that a significant proportion would not elect to opt out.
8.8
We note that New Zealand Post in their redirection form for mail use opt out rather than opt in mechanisms. If individuals really are concerned about the use of their information they will be motivated to opt out but if they cannot be bothered to do so it is likely that they do not care about the use or that it is not perceived by them as harmful.
9
We would be happy to expand on these views in either a public forum or private discussion with the Law Commission.
Thank you for the opportunity to contribute to the debate.
Keith W Norris
Chief Executive
Marketing Association
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