Data (Use and Access) Bill [HL]

Debate between Baroness Harding of Winscombe and Lord Vallance of Balham

Report stage
Tuesday 21st January 2025 Lords Chamber

[Lord Vallance of Balham (Lab)]

My Lords, I now turn to government Amendment 49. I thank the noble Lord, Lord Clement-Jones, and other noble Lords for raising the concerns of the charity sector during earlier debates. The Government have also heard from charities and trade associations directly.

This amendment will permit charities to send marketing material—for example, promoting campaigns or fundraising activities—to people who have previously expressed an interest in their charitable purposes, without seeking express consent. Charities will have to provide individuals with a simple means of opting out of receiving direct marketing when their contact details are collected and with every subsequent message sent. The current soft opt-in rule for marketing products and services has similar requirements.

Turning to Amendment 24, I am grateful to the noble Baroness, Lady Harding, for our discussions on this matter. As was said in the debate in Grand Committee, the Government are committed to upholding the principles of transparency. I will try to outline some of that.

I understand that this amendment is about data brokers buying data from the open electoral register and combining it with data they have collected from other sources to build profiles on individuals with the intention of selling them for marketing. Despite what was said in the last debate on this, I am not convinced that all individuals registering on the open electoral register would reasonably expect this kind of profiling or invisible processing using their personal data. If individuals are unaware of the processing, this undermines their ability to exercise their other rights, such as to object to the processing. That point was well made by the noble Lord, Lord Davies.

With regard to the open electoral register, the Government absolutely agree that there are potential benefits to society through its use—indeed, economic growth has been mentioned. Notification is not necessary in all cases. There is, for example, an exemption if notifying the data subject would involve a disproportionate effort and the data was not collected directly from them. The impact on the data subject must be considered when assessing whether the effort is disproportionate. If notification is proportionate, the controller must notify.

The ICO considers that the use and sale of open electoral register data alone is unlikely to require notification. As was set out in Committee, the Government believe that controllers should continue to assess on a case-by-case basis whether cases meet the conditions for the existing disproportionate effort exemption. Moreover, I hope I can reassure the noble Baroness that in the event that the data subject already has the information—from another controller, for example—another exemption from notification applies.

The Government therefore do not see a case for a new exemption for this activity, but as requested by the noble Baroness, Lady Harding, I would be happy to facilitate further engagement between the industry and the ICO to improve a common understanding of how available exemptions are to be applied on a case-by-case basis. I understand that the ICO will use the Bill as an opportunity to take stock of how its guidance can address particular issues that organisations face.

Amendment 50, tabled by the noble Lord, Lord Clement-Jones, seeks to achieve a very similar thing to the government amendment and we studied it when designing our amendment. The key difference is that the government amendment defines which organisations can rely on the new measure and for what purposes, drawing on definitions of “charity” and “charitable purpose” in relevant charities legislation.

I trust that the noble Lord will be content with this government amendment and feel content to not to press his own.

[Baroness Harding of Winscombe (Con)]

Before the Minister sits down, can I follow up and ask a question about invisible processing? I wonder whether he considers that a better way of addressing potential concerns about invisible processing is improving the privacy notices when people originally sign up for the open electoral register. That would mean making it clear how your data could be used when you say you are happy to be on the open electoral register, rather than creating extra work and potentially confusing communication with people after that. Can the Minister confirm that that would be in scope of potential options and further discussions with the ICO?

[Lord Vallance of Balham (Lab)]

The further discussions with the ICO are exactly to try to get to these points about the right way to do it. It is important that people know what they are signing up for, and it is equally important that they are aware that they can withdraw at any point. Those points obviously need to be discussed with the industry to make sure that everyone is clear about the rules.

[Baroness Harding of Winscombe (Con)]

I thank noble Lords for having humoured me in the detail of this debate. I am very pleased to hear that response from the Minister and look forward to ongoing discussions with the ICO and the companies involved. As such, I beg leave to withdraw my amendment.