Direct electronic marketing (e-marketing) is currently regulated under the ePrivacy Directive, which generally requires opt-in consent before engaging in such activity. First Move operates under strict legislation policies. Cookie Policy 5 Directive 2002/58/EC, Article 13(2). It’s vexing because it’s easy to ignore the rest of the GDPR recitals and articles and read that sentence as “you don’t need consent for email marketing because it’s a legitimate interest”. Consent vs L… checklist. To put it simply, consent is a data subject’s indication of agreement to the processing of their personal data, and thus putting control in the hands of the data subject. Amazon UK provides two helpful examples of this. According to the WP29, one way of doing this is to “keep a record of consent statements received” in order to show how and when consent was obtained, what information was provided to the data subject, and the workflow behind ensuring that the consent included each of the requisite elements.3 This could mean “retain[ing] information on the session in which consent was expressed, together with documentation of the consent workflow at the time of the session, and a copy of the information that was presented to the data subject at that time”4 and consent management tools can assist with generating and managing such records. Direct Marketing: It’s well liked. The Latest on Brexit: Everything You Need to Know and What to Do Next. However, under the GDPR, additional conditions will need to be met, making consent more difficult to rely on as a legal basis for processing. The UK Information Commissioner’s Office (ICO) breaks this down into a three-part test: The completed LIA can then be used to demonstrate to a supervisory authority, if necessary, that full consideration was given to the interests of all affected parties, including to the potential benefits and harms that could stem from the activity. In the UK, for example, “you can email or text any corporate body (a company, Scottish partnership, limited liability partnership or government body)” without first needing to obtain consent.6. Should you rely on consent or legitimate interest for the purpose of #directmarketing emails under the #GDPR? Direct marketing is a legitimate interest and there for does not need an opt-in - full stop, crystal clear. It would be unnecessarily obstructive, annoying and off-putting for the seller to have to explain this and to obtain a record that the purchaser understood and agreed to this data collection and use. You must be able to prove you’ve done this. 1 GDPR, Article 6(1)(f). In fact, 11 EU member states actually allow for business-to-business (B2B) e-marketing on an opt-out basis at any time, regardless of whether it is in the context of a sale (for details, see this report by Fieldfisher). Direct Marketing Under the GDPR. BPM will have justifiable grounds for direct marketing emails when it either: (i) has the consent of the recipient; or (ii) has a legitimate interest in sending direct marketing emails to the recipient, which are not outweighed by associated prejudice to the recipient's privacy. Out of all six legal bases for processing offered by the GDPR, two in particular have stood out—consent and legitimate interests—and a question we have commonly heard at OneTrust is: which of these should I rely on for the purpose of sending direct marketing emails? ... for use in direct marketing and for the purposes of scientific and historical research and statistics. Start typing to see results or hit ESC to close, Microsoft Discovers A Second Hacking Team Exploiting SolarWinds Orion Software, As Final Stage of Brexit Approaches, Facebook Moves UK User Data to California to Escape EU Privacy Rules, Solarwinds Backdoor Affected 18,000 Customers; Microsoft Warns 40 Actively Targeted Organizations, FTC Expands Its Probes Into Big Tech’s Dealings; Nine of the Biggest Must Share Detailed Information About Data Practices. If GDPR was the only law of the land then we would be back to the wild west days of opt-out email rather than the current opt-in regime. Direct marketing is a common purpose of processing, and it includes a number of different activities—e.g., collecting personal data from potential customers, creating profiles about those potential customers and their preferences, and then sending personalized communications to them. First of all, direct mail doesn’t require the consent of end-users. Direct Marketing & GDPR Be compliant and build trust. Data Protection Manager. What this statement is doing is actually reiterating that there are higher permission standards for digital marketing. As PECR does not cover postal marketing, does that mean that I can collect personal data for DM without consent? Andrew Clearwater serves as Director of Privacy at OneTrust. Privacy Policy If the data subject objects, the controller only has to stop the processing for marketing purposes, but can still process the data for other purposes, e.g. Unsolicited direct marketing is essentially marketing contact with you that was not sought or requested by you. In fact, 3 household brands have already been fined. To begin with, marketing under the GDPR (whether postal, phone, e-mail, SMS or any other form of marketing) is regulated exactly like any other data processing activity. This means, that in most cases, even if you are relying on legitimate interests to satisfy the GDPR, the ePrivacy Directive would still mandate consent. However, there is an exception—marketing emails may be sent on an opt-out basis if the recipient’s details were collected “in the context of the sale of a product or a service,”5 but this exception has also been implemented differently by the EU member states. Direct marketing is a legitimate interest and there for does not need an opt-in - full stop, crystal clear. The EU General Data Protection Regulation is finally here, and while its arrival has been long awaited, the discussion on how to implement its requirements does not end here. If you notify a company that you object to them processing your personal data for direct marketing purposes, it means they must stop, or not begin, sending you marketing material or contacting you for marketing purposes. Comply to GDPR with our Direct Mail Marketing Services. Please note, direct marketing is the promotion of aims and ideals as well as the sale of products and services. 9 WP 259. Article 21 of the GDPR states that “where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing” and that “where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.” even if opt-in consent is not required before sending marketing emails, the GDPR … For example, during an online purchase you have to provide contact, payment and address information, and the seller will have to record your transaction. It's not saying that legitimate interests is a basis for direct marketing activities without consent. Progressive Media Group Limited Learn from their mistakes before you schedule your next marketing campaign. Direct marketing is the Old Faithful of the marketing comms mix. Therefore, the decision-making process should include multiple stakeholders, including legal, privacy, marketing and executive management, to name a few, as cooperation between these groups will be vital to success. With this in mind, it is important to note that Article 21 of the GDPR states that “[w]here personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing” and that “[w]here the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.” Moreover, this right must be “explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.”7. 8 WP 259. It means that when you look at the overall needs and rights of data controller and data subject, there will be times where you don’t need to ask for consent to collect, store, use, disclose, process, destroy or otherwise “process” personal information. While that is true, should the e-Privacy Directive go away, then GDPR would not enforce an opt-in. If a business ‘does’ marketing, it’s likely to do direct marketing of some description. Sending direct marketing messages No matter which method you use for sending direct marketing messages the GDPR … Hear from the Customer Data Council’s Thought Leadership and Best Practice Hub about the wider implications of the, Why phone-qualified leads are the key to revenue creation, DMA Customer Data Council: Responding to the ICO'S Experian Enforcement Notice. At this stage, you might be thinking that GDPR has a negative impact on the the way you do business today. Of course there may be an option to use third-party payment services, sign up for an account, save details, sign up to marketing and more. Within the GDPR text one single phrase has vexed me for months: The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. Clearwater is a Certified Information Privacy Professional (CIPP/US) and is a licensed privacy attorney in Maine and Massachusetts. If you have marketing consent, that marketing consent may already cover that behavioural profiling: The question to ask is: If you don’t have marketing consent what is your justification (the legitimate interest that you can prove) for collecting and processing personal data? Assess your business in the area of direct marketing in line with the Privacy and Electronic Communications Regulation (PECR) and data protection legislation. This is really interesting, I've been researching the same thing. We all know how effective direct mail can be. But some basic information is necessary to fulfil a transaction, and is both “legitimate”, expected and should not be obstructed by a consent statement. Under the GDPR, your data processing must meet one of the lawful bases of the processing. This is a difficult question to answer, and as most lawyers will tell you: “it depends.”. Unsolicited direct marketing. He also provides public policy analysis in the areas of privacy, data security, information policy, and technology transactions. Obtaining consent for marketing We use opt-in boxes We specify methods of communication (eg by email, text, phone, recorded call, post) We ask for consent to pass details to third parties for marketing and name those third parties We record when and how we got consent, and exactly what it covers Direct marketing under the GDPR is treated the same as any other data processing – you will need to show that you have a lawful basis for collecting and processing data from customers, with consent being one such lawful basis. So, this means that a company with B2B customers could potentially rely on legitimate interests for sending e-marketing to recipients in certain countries, while relying on consent in others. We’re here to help, contact us on 01825 983033 or email us on info@mailingexpert.co.uk Contact Us To comply with GDPR, we share a marketing checklist that we have used, which includes 9 practical tips to help you get closer to meeting those EU requirements. It’s vexing because it is the last sentence in an otherwise well-defined section. From data capture, storing information and distributing direct mail campaigns, GDPR compliance is ensured every step of the way. 21(2), (3) GDPR the data subject always has the right to object the processing of personal data for direct marketing purposes. Do not sell my information, Direct Marketing Under the GDPR: Consent vs Legitimate Interests. Where the direct marketing involves electronic communications, however, is where things get muddy. Guide to Direct Marketing The General Data Protection Regulation (GDPR) comes into force on 25, May 2018, and requires anyone collecting and using personal data such as email addresses, to provide those people with details about what we are using their data for. It is true that legitimate interests provides flexibility to data controllers, but it is important to note that with flexibility comes risk that a supervisory authority might disagree with your LIA and thus your reliance on legitimate interests as a legal basis for a given processing activity. Amazon UK provides two helpful examples of this. Most marketing teams help manage consent through direct marketing by adding an Unsubscribe function on any texts or emails and by using a communication preference page within the customer's account. 2 Article 29 Working Party, “Guidelines on Consent” (WP 259), 28 November 2017, http://ec.europa.eu/newsroom/just/document.cfm?doc_id=48849. Unsolicited direct marketing. 7 GDPR, Article 21(5). GDPR is a new EU regulation to replace Directive 95/46/EC. Cookie Policy Direct marketing can currently be carried out following a variety of opt-ins or opt-outs, but under GDPR the rules become more challenging because giving consent (or opting in) to direct marketing has specific requirements. About Under the GDPR, BPM can carry out direct marketing (B2C or B2B) if it has justifiable grounds for doing so. The exception is where you have bought something, given the organisation your details, and did not opt out of marketing messages. In this role, Clearwater provides counsel, leadership, and guidance on all legal issues relating to OneTrust’s corporate environment. The GDPR applies wherever you are processing ‘personal data’. Therefore, reliance on legitimate interests requires a certain level of comfort with uncertainty. Direct marketing is a sales technique used by many companies. Where the direct marketing involves electronic communications, however, is where things get muddy. It also addresses the transfer of personal data outside the EU and EEA areas. Think of web browsing and purchase data, linked to an individual: If you record page and product views, the device used and the location of the browsing; and you build up a profile based on this location and behaviour and it’s linked to an individual – this is a common scenario convered by the GDPR. 4 WP 259. GDPR does not itself deal directly with direct marketing (other than to provide for an unqualified right to opt out of it (at Article 21(3)) and a statement in recital 47 to the effect that the processing of personal data for the purposes of direct marketing may be regarded as carried out for a legitimate interest). Remember that the GDPR covers data collection, storage and use; how that data is protected while in your control; how data subjects control the quality, use, disclosure and destruction of that data. Includes consent and bought-in marketing lists, and telephone, email, text and postal marketing. He is CIPP/US, CIPP/E, CIPM and CIPT certified, and is a licensed attorney in New Hampshire. Recital 47 of the GDPR says: “The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” Especially, in regards to postal marketing. Through those processes you have contact details and other data provided by your customers and prospects which you use to generate or populate that marketing. You need a legal basis for collecting, storing and using personal data. About Our Advertising Unsolicited direct marketing is essentially marketing contact with you that was not sought or requested by you. Privacy Policy Contact for the performance of a contract. This means that you have to show that you have a lawful basis under Art 6 to conduct direct marketing, and this lawful basis does not necessarily have to be consent-based. Full stop! Under the GDPR, one of the ways in which personal data may be processed is where the “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”1 Implicit in this legal basis, and in combination with Article 5’s ‘accountability’ principle, is the need to document a legitimate interests assessment (LIA). Since the introduction of the GDPR, attention to direct marketing has increased, as it has received a lot of questions about data protection. If a business ‘does’ marketing, it’s likely to do direct marketing of some description. GDPR is a golden opportunity for marketers. Direct marketing You must check if customers want to be contacted by fax, phone, post or email, and give them the chance to object. 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