The plan for the Lib Dems to phone 250,000 people on Wednesday evening, after the conclusion of the party conference, has attracted some criticism both inside and outside the party.

If this is the big idea to come back from sending people to the US Democrats’ Convention then I’m not sure the flights were worth it. Automated phone messages were used in the 2000 Presidential election and possibly before in America. I may not have been the first in the UK to use them, but I did use them at the 2001 General Election. The results then were not particularly significant, other than sending a few Tory activists apoplectic with fury (maybe justification for using them on its own!).

However there would seem to be two strong reasons (and one less strong one) why this scheme isn’t a good idea.

Firstly it is, at best, legally ambiguous. The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) clearly requires the prior consent of anyone to receive communications “comprising recorded matter for direct marketing purposes”.

The SNP were recently on the wrong end of an adjudication regarding these regulations, where it was confirmed by the Information Tribunal that they do apply to political parties. It should be noted, though, that their activities were slightly different from what is reported to be happening here.

The question therefore is whether these calls are for direct marketing purposes. Generally it is regarded that “genuine market research” isn’t a direct marketing purpose.

This doesn’t seem to be a technique used by market research companies to conduct political polls. Certainly it’s hard to see how the questions necessary to establish whether your sample is accurate can be put. It’s also questionable as to how much a genuine poll will be affected by having an introductory message from the party leader as is the case here – or indeed what would be the point of a message which didn’t carry any element of promoting the party.

Another key point about genuine market research is the use to which the data is put. The Information Commissioner’s guidance is that:

We are aware that political parties do not just communicate with individuals for promotional purposes.

A political party can conduct genuine research just as professional market research companies do. Parties should, however, be careful to ensure that such communications are not in reality soliciting support under the guise of research. For example, a telephone call which starts by seeking opinion and then urges support or invites contact with a candidate would be considered as a marketing call and must therefore be conducted in accordance with the PECR.

Where a political party makes a market research call with the intention of capturing certain details in order to identify those judged likely to support that party for the purpose of targeting them with marketing follow ups by mail, telephone or visit, then we consider that the original profiling call will have been made for direct marketing purposes. Again it will be caught by the PECR.

So if this exercise is to be legal, it is clear that the information obtained can’t be used for any campaigning purpose. It therefore seems a good question to ask why the party would spend the money and effort phoning 250,000 people two years before an election, when it can’t record and use the responses for any further campaigning, recruitment or fundraising purpose.