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Act today

Marketers beware: the revised Data Protection Act came into effect in October 2001. So whatís the big deal? As Karen Beardon writes, itís because it affects everyone in the market research process.

It matters not whether you work for an agency or run one; in a market research department; in advertising; in a fieldwork company; in a viewing facility; as an independent consultant; telephone interviewer; field recruiter or observer of group discussions - you’ll be touched by the Act.

It covers all organised data collection and processing methods including audio; video; computers; CAPI and CCTV, etc. The following are its eight key principles, all of which are included in the Market Research Code of Conduct.

The Data Protection Act requires that personal data:

  • Must be processed fairly and lawfully
  • Can only be used for the specified and lawful purposes for which it was collected
  • Shall be adequate, relevant and not excessive
  • Shall be accurate and kept up to date
  • Must not be kept beyond fulfilling the purpose for which it was collected
  • Shall be processed in accordance with the rights of data subjects
  • Must be kept secure
  • Shall not be transferred outside the EEA unless adequate protections are in place

And, despite the red tape, there are welcome side effects. It gives our own Code of Conduct more weight. It lends authority and professionalism to our industry and it establishes respondents’ rights. It’s also worth remembering that the principle of informed consent will improve the quality of data.

Impact on recruiters

Recruitment agencies and any recruiters with a readily available or organised list of respondents or potential respondents must notify the Office of Information Commissioner (OIC). Respondents, meanwhile, must be told at the recruitment stage - either verbally or through an invitation - the following:

  • The subject/topic of the session
  • That the purpose is market research
  • The location of the group (viewing facility/home)
  • Whether it’s to be audio or video-recorded
  • Who will conduct the discussion (research agency/ researcher)
  • What happens to personal data collected at the interview

Names and addresses must not be passed to or used by anyone without the respondent knowing and agreeing. Permission to re-recruit and re-interview, meanwhile, must be asked at the outset - respondents cannot be re-contacted afterwards unless they have agreed initially.

Recruitment questionnaires, incentive or attendance sheets must never be handed to the client without explicit permission of the respondents and even then can only be used for market research purposes. Such questionnaires must also be stored securely and returned to the research/recruitment agency at the end of the project.

Recruitment from databases/lists

The research or recruitment agency must check that the client who is supplying any database or list has notified the OIC. If the respondent asks where their details come from they must be told. Since this may bias any subsequent interview or recruitment, however, agencies can ask to delay their response until after the interview or session.

The client’s name must be included in the recruiter’s instructions - in case they are asked when contacting respondents. The only information that can be passed back to a client is if someone on the list has died or if there is an incorrect address. The client cannot be given any other new information - i.e. the respondent’s new address or any other personal information

Client lists or databases must either be returned to the client at the end of the project or be destroyed as agreed with the client. They are not to be used for any other projects.

As is the situation with moderators and researchers, primary data can only ever be used for market research purposes.

Impact on moderators/researchers

Respondents must be told the topic of the session and how long it will last. If it’s deemed to be sensitive, they must be told the subject of the discussion and the content.

All respondents, meanwhile, must be given the opportunity to withdraw while their names and addresses must not be passed to or used by anyone without their knowing and agreeing.

Their permission must also be obtained, during the session, to record it and to release the data to a third party, with the purpose and other details clearly stated.

None of the following forms of primary data are to be given to the client without respondents’ explicit permission and even then they can only be used for market research purposes:

  • Recruitment questionnaires
  • Incentive or attendance sheets
  • Audio or videotapes
  • Transcripts
  • Hand-written notes containing personal data
  • Projective material

If a client wishes to see any primary data, the respondent’s permission in writing must be obtained during the research for data to be handed to a third part. This permission must include explicit details of:

  • Who the data will be given to?
  • Who will see it?
  • What it will be used for?
  • Where, if it leaves the country, it will be going (outside the EEA)?

The people to whom the data can be shown/given can change, but only with the explicit permission of every respondent interviewed. As for the primary data itself, it can only ever be used for market research purposes, and must be labelled with appropriate restrictions when handed over to a third party.

Researchers, meanwhile, must ensure that the recipients, viewers, readers and listeners of the data are aware of the legislation and the Code.

Impact on clients

If respondents are to be recruited from a client list or database, the client must be notified with the OIC. Respondents recruited by this method must be told the client’s name if asked.

The only information that may be passed back is the fact that someone on the list has died or an address that has proved incorrect. Other information, such as brand user-ship or new addresses, cannot be passed back.

Another aspect that clients should be aware of is that, when observing, they should take care not to note down respondents’ personal data. Neither should they ask for respondents to be re-contacted unless they have specifically given their agreement at the recruitment or interviewing stage.

Impact on viewing facilities

Viewing facilities must not video-record research groups, unless specifically requested. Consent forms must be given to every respondent and must contain consent for audio and videotaping.

As with moderators and researchers, Viewing Facilities must ensure that no forms of primary data are given to the client without explicit permission of the respondents and that, even then, they can only be used for market research purposes. (See above list for forms of primary data):

Impact on other suppliers/buyers

The Act does not, as you might think, affect just those involved in more mainstream research. Do you, for example,

  • sample from client databases to which you add any research findings or data on things like contact or availability?
  • have your own list of respondents or buy other lists?
  • hold audio or video recordings or any other data collected during a research project in a manner in which it remains linked to data subjects?

Then this Act applies to you and you should notify the OIC. Non-compliance with it means that penalties can be exacted. The Commissioner, for instance, can impose an Enforcement Notice on your company and you could be taken before a tribunal.

The Market Research Society can provide more detailed information on the 1998 Data Protection Act and its implications, so please contact them direct or visit their website. In the meantime, though, here are some examples of Protections queries that may occur and how to resolve them:

Frequently asked questions

Q. I have been asked to recruit a project based on what cars the respondents drive. The recruitment questionnaire also screens what electronic items the respondent has bought. I would like to keep their details for future use - what do I have to tell them or ask them in order to be able to do this?

A. The recruiter will have to ask at the initial contact whether the respondent would be willing for their information to be kept on file and to be contacted again. Respondents must be told that they would be contacted for market research purposes only.

Q. I have been asked by another recruiter to help out on a project where she is struggling to find respondents who have a particular financial product. I have a financial database that I use and am willing to share. Can I do so?

A. Assuming that the respondents had previously agreed to be re-contacted, each recruiter would have to recruit from their own lists. There would be no need to hand lists over from one recruiter to another

Q. A client has supplied me with a list from which to recruit mini-groups of customers, but does not want to be identified. Some respondents have asked where I got their names. What can I tell them?

A. If respondents ask, then they have a right to know. You may, however, try and tell them that it will become apparent within the session that they attend. A refusal to give such information would affect response rates.

Q. A number of group discussions on customer service were conducted by an agency in viewing facilities and the client has now requested copies of the tapes to use for internal training purposes. Can we meet this request?

A. No. Tapes cannot be given to clients except where they will be used solely for market research purposes and where respondents have given prior explicit consent.

 

Karen Beardon
Copyright © Association for Qualitative Research, 2002