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. 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. 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. Should you rely on consent or legitimate interest for the purpose of #directmarketing emails under the #GDPR? As with the pre-GDPR laws, GDPR creates a general principle of permitting Direct Marketing if the Legitimate Interest is shown to be valid, such as there is a reasonable expectation from the … Put another way sending an email in the UK without an opt-in would not contravene GDPR but would contravene PECR. Direct marketing. Direct Marketing: It’s well liked. 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). We all know how effective direct mail can be. Let me explain: You have a collection of signup process for your marketing program. Yes. Direct marketing is the Old Faithful of the marketing comms mix. If you receive direct marketing when you have not provided your information to an organisation, or did not provide it for the purpose of marketing, this is known as unsolicited direct marketing. 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. 9 WP 259. For example, during an online purchase you have to provide contact, payment and address information, and the seller will have to record your transaction. 1 The data subject shall have the right to object, on grounds relating to his or her particular situation, … 2 Article 29 Working Party, “Guidelines on Consent” (WP 259), 28 November 2017, http://ec.europa.eu/newsroom/just/document.cfm?doc_id=48849. This must be taken into account regardless of whether personal data processing was carried out prior GDPR. The Latest on Brexit: Everything You Need to Know and What to Do Next. Lead qualification over the phone provides a more intelligent and strategic approach that can be carried out by sales specialists, freeing up your most valuable sales resource to focus on the closing stage. Does the GDPR apply to business-to-business marketing? Clearwater is a Certified Information Privacy Professional (CIPP/US) and is a licensed privacy attorney in Maine and Massachusetts. In essence, your argument presupposes that the e-Privacy Directive exists and therefor it would not be possible under GDPR to legitimately collect email without an opt-in. Brian received his JD and Certificate in Information Privacy Law with honors from the University of Maine School of Law. Under the GDPR, marketers would need to re-establish consent (or another lawful basis) to use an individual’s email address or any other personal data for another purpose. It also addresses the transfer of personal data outside the EU and EEA areas. Direct marketing . This question is one of the hottest for … First Move operates under strict legislation policies. Our Advertising And that’s where it ends; the teaser at the end of the credits. About 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. 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. Direct marketing is defined in section 122(5) of the Data Protection Act 2018 as: “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”. Is legitimate interest an opportunity for direct marketing? Especially, in regards to postal marketing. According to Art. Under GDPR it is usually up to you to make a positive choice to agree to further direct marketing communications by email, such as ticking a box or agreeing over the phone. 2 3 Contents Purpose4 The Laws 4 Marketing and Service Messaging 5 Email Marketing Basics 6 Sources of Data 8 Cookies etc. In this role, Clearwater provides counsel, leadership, and guidance on all legal issues relating to OneTrust’s corporate environment. 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. What this statement is doing is actually reiterating that there are higher permission standards for digital marketing. Outsourcing your direct mail solves some big problems – namely ensuring you stay GDPR complaint. Assess your business in the area of direct marketing in line with the Privacy and Electronic Communications Regulation (PECR) and data protection legislation. Under the GDPR, marketers would need to re-establish consent (or another lawful basis) to use an individual’s email address or any other personal data for another purpose. GDPR and Direct marketing white paper demystifies the GDPR and ePrivacy for both DPO and a CMO, with real-life examples and useful information This will ensure we have one data protection law and increase individual rights Over the last year, the legal team at the Direct Marketing Association have been working to decipher the GDPR to ensure that marketing companies are aware of the new rules and can remain compliant. Where the direct marketing involves electronic communications, however, is where things get muddy. While that is true, should the e-Privacy Directive go away, then GDPR would not enforce an opt-in. 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. 9 Customer Recommendations 9 Market Research 10 Social Media Marketing 10 Special Category Data 10 Where the direct marketing involves electronic communications, however, is where things get muddy. Consent, on the other hand, can provide a great deal more certainty. 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. 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. 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. Even though it may look like GDPR compliance brought marketers many troubles, in fact, it helped to solve them. As PECR does not cover postal marketing, does that mean that I can collect personal data for DM without consent? "Legitimate interests" is a sensible concept. However, under the GDPR, additional conditions will need to be met, making consent more difficult to rely on as a legal basis for processing. 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? GDPR however, is not the only European law or regulation that covers the email marketing industry. Amazon UK provides two helpful examples of this. Direct marketing is a legitimate interest and there for does not need an opt-in - full stop, crystal clear. The GDPR applies wherever you are processing ‘personal data’. You must be able to prove you’ve done this. The exception is where you have bought something, given the organisation your details, and did not opt out of marketing messages. checklist. Direct Marketing: It’s well liked. He is CIPP/US, CIPP/E, CIPM and CIPT certified, and is a licensed attorney in New Hampshire. This is really interesting, I've been researching the same thing. Cookie Policy Unsolicited direct marketing is essentially marketing contact with you that was not sought or requested by you. That’s usually because if done right, it works. Sure, GDPR does sound intimidating and the fines issued by the ICO are enough to make you rethink your entire marketing strategy. 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. At this stage, you might be thinking that GDPR has a negative impact on the the way you do business today. Consent and legitimate interests are the legal bases most likely to be relied upon to justify direct marketing. 8 WP 259. Consent and legitimate interests are the legal bases most likely to be relied upon to justify direct marketing. Consent has historically been one of the most common legal bases relied upon for the processing of personal data. 6 https://ico.org.uk/for-organisations/guide-to-pecr/electronic-and-telephone-marketing/electronic-mail-marketing/ Data Protection Manager. The Data Protection Act 2018 (DPA) defines direct marketing (DM) as: “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” This includes marketing communications sent by post, email, text messages and telephone. And like consent, legitimate interest is one of them. 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”. Under the GDPR, your data processing must meet one of the lawful bases of the processing. 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. Through those processes you can demonstrate clear and specific consent. If a business ‘does’ marketing, it’s likely to do direct marketing of some description. In fact, this is likely to be the start of an ongoing discussion for years to come, especially given the risk-based approach to compliance that is mandated by the GDPR. Direct marketing is the Old Faithful of the marketing comms mix. In this way, one can perfectly attract new customers or inform existing customers of its products and services. 1 GDPR, Article 6(1)(f). 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. First of all, direct mail doesn’t require the consent of end-users. 7 GDPR, Article 21(5). 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. 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. You need a legal basis for collecting, storing and using personal data. send direct marketing to their new address – such tracing takes away control from the individual to be able to choose not to tell you their new details. 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. Direct electronic marketing (e-marketing) is currently regulated under the ePrivacy Directive, which generally requires opt-in consent before engaging in such activity. If you have data legitimately collected for direct marketing you must already have fulfilled the higher standards set by the e-Privacy directive (and PECR in the UK); so of course you can process that data for direct marketing. GDPR however, is not the only European law or regulation that covers the email marketing industry. In fact, 3 household brands have already been fined. News, insights and resources for data protection, privacy and cyber security professionals. I generally think you got to the right place but I am not convinced by how you got there. 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. Head of Deliverability. If a business ‘does’ marketing, it’s likely to do direct marketing of some description. Privacy Policy We’re here to help, contact us on 01825 983033 or email us on info@mailingexpert.co.uk Contact Us The General Data Protection Regulation (EU) 2016/679 (GDPR) is a regulation in EU law on data protection and privacy in the European Union (EU) and the European Economic Area (EEA). Please note, direct marketing is the promotion of aims and ideals as well as the sale of products and services. Direct marketing You must check if customers want to be contacted by fax, phone, post or email, and give them the chance to object. That’s usually because if done right, it works. 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. Failure to comply with GDPR can lead to hefty fines. 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. But if you think that you're reading this the wrong way round. This is a difficult question to answer, and as most lawyers will tell you: “it depends.”. Progressive Media Group Limited It's not saying that legitimate interests is a basis for direct marketing activities without consent. 21(2), (3) GDPR the data subject always has the right to object the processing of personal data for direct marketing purposes. Direct Marketing Under the GDPR. You can make plans for your direct mailing initiatives without panicking about explicit consent, as long as your data processing meets the GDPR regulations and you can demonstrate the potential benefits to the end consumer. We’re ready and waiting for your call. 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. 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. 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). Amazon UK provides two helpful examples of this. Terms of Use Direct marketing is a legitimate interest and there for does not need an opt-in - full stop, crystal clear. GDPR is a golden opportunity for marketers. The Information Commissioner's Office (ICO) opened a consultation on a new draft direct marketing code last week in which it has encouraged businesses to plan their direct marketing activities. Since the introduction of the GDPR, attention to direct marketing has increased, as it has received a lot of questions about data protection. Therefore, reliance on legitimate interests requires a certain level of comfort with uncertainty. The principle of accountability enshrined in the General Data Protection Regulation (GDPR) is reflected in a UK regulator's proposed new code of practice on direct marketing. 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. 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. GDPR and Direct Marketing Wednesday April 4, 2018 With 25 May fast approaching – and with it the implementation of the General Data Protection Regulation (GDPR) - it’s time to talk about an activity that is key to most charitable organisations, direct marketing. Andrew Clearwater serves as Director of Privacy at OneTrust. About GDPR requirements for Direct Marketing When conducting direct marketing communication, there are certain baseline requirements dictated by the GDPR and call for full compliance with: • Lawfulness, fairness and transparency principle Unsolicited direct marketing is essentially marketing contact with you that was not sought or requested by you. Under Article 4(11) of the GDPR, consent is defined as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”, Additionally, under Article 7(1), data controllers must also be able to “demonstrate that the data subject has consented to processing of his or her personal data” and according to the Article 29 Working Party “[c]ontrollers are free to develop methods to comply with this provision in a way that is fitting in their daily operations.”2. 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