Laudator: Karin Schuler

The BigBrotherAward 2008 in the “Consumers” category goes to the

Work Group of German Market and Social Research Institutes

(Arbeitskreis Deutscher Markt- und Sozialforschungsinstitute e.V., ADM)

represented by its chairman Mr Hartmut Scheffler,

further repesenting the Work Group of the Association of Social Science Institutes (Arbeitsgemeinschaft Sozialwissenschaftliche Institute e.V.), the Professional Association of German Market and Social Researchers (Berufsverband Deutscher Markt- und Sozialforscher e.V.), and the German Association for Online Research (Deutsche Gesellschaft für Online-Forschung e.V.)

for their recommendation in a guideline to have consumer interviews by telephone monitored secretly, and to continue propagating this illegal guideline even after protests from the data protection authorities.

You may remember your maths lessons in school. In my times, when I was supposed to solve a problem and couldn’t, my teacher used to say: “Why don’t you write down what should come out in the end — and then look if you can work your way backwards.” Sometimes this method did actually come up with logical loopholes to prove an equation.

In a bizarre way I felt reminded of this when I got hold of the above-mentioned recommendations for telephone interviews that the ADM gives to their members: Their “guideline for telephone surveys” (Richtlinie für telefonische Befragungen).

The Work Group of German Market and Social Research Institutes (the ADM) is the professional association of the biggest and most influential German market and social research institutes. The declared objectives of the ADM include: to protect the anonymity of the people interviewed, to set standards in cooperation with purchasers of market research, and to contribute to the development of data protection norms in market and social research.

The said ADM guideline for telephone surveys describes some correct procedures for such interviews. The guideline explains, for instance, measures to maintain the privacy of the people molested via the phone — such as choosing appropriate times, or immediately ending a call in case the person called refuses to be interviewed.

But this guideline also addresses quality management, and some of the suggestions are somewhat idiosyncratic: To enable monitoring of such calls by a superior is typical for call-centres; but the ADM’s recommendation that monitoring by the external commissioner of a survey should be allowed does seem perplexing. That this should be possible without letting interviewer nor interviewee know — leaves one utterly speechless!

The ADM reasons thus: The aim of the interview can only be achieved if the interviewer behaves “normally”. Therefore it is permissible not to inform him about occasional eavesdropping, particularly as he has been informed about this practice when signing his work contract. The concerns of the person interviewed are also unharmed: After all, he consents to taking part in a survey that will be scientifically evaluated, so he can’t expect a confidential conversation anyway.

One may assume that ADM, who according to their own assertions even want to play an active role in making new laws, should at least know the existing ones. Therefore they should be familiar with data protection, criminal and labour regulations, which allow listening in on telephone conversations only, but only, if both partners in the conversation know about this and have given their consent. Should ADM have any doubts about the interpretation of such laws, they might turn to the Berlin Commissioner for Data Protection and Freedom of Information (Beauftragter fuer Datenschutz und Informationsfreiheit) whose very clear words in a press statement should have removed any uncertainties. As he explained, all institutions within his area of responsibility that secretly monitor telephone conversations will have to face monetary fines and penalty payments. Ever since this press release, the ADM actually could not have ignored the state of the laws any longer and would have had to amend their guideline accordingly.

But obviously the ADM is not one to be stopped by such trifles. If need be, one can always redefine one’s statements until one’s actions seem acceptable. This approach, though, has nothing to do with the above-mentioned constructive principle of backwards logic — it is a case of downright spin doctoring.

What kind of contribution to the development of legal norms on data protection can be expected from an institution that consciously misinterprets existing laws? After all, an overall statement in a labour contract does not effectively constitute the interviewer’s consent to be eavesdropped upon, nor does the consent of the interviewee to being interviewed constitute waiving the right to confidentiality of the spoken word. Or else one might assume, using ADM’s line of argument, that broadcasting an interview live on the radio were permissible, as long as no immediately identifiable attributes, such as name or address, were mentioned. Such an interpretation is of course untenable — and as it certainly goes against the expectations of the people concerned, it is highly unfair as well. No interviewer can be sure when and for how long he will be monitored; nor does the interviewee — who has been assured of anonymity — reckon with further listeners. Both partners in such a conversation lose control and oversight of who will become aware of their utterances in the end.

Let me remind you of last year’s winner of the BigBrotherAward in the “Workplace” category. Novartis had commissioned interviews of their employees by an institute for market and social research. The employees had been tricked into giving statements they were later sorry to have made: that is, when the allegedly anonymous statements turned up — complete with names and all — in the human resources department.

Although ADM may not believe this: even in market and social research, the existing legal prescriptions about the protection of personal rights do apply. The recommendations for clandestine monitoring must therefore be withdrawn immediately and the member institutes have to be made aware of the illegality of the guideline. Violations need to be severely sanctioned, as Berlin has already made clear, by the data protection authorities.

For the imaginative but, in terms of data protection, hostile use of a principle of mathematical proof — heartfelt congratulations to the BigBrotherAward, Herr Scheffler.