No matter which method you use for sending direct marketing messages the GDPR will apply when you are processing personal data. 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. First Move operates under strict legislation policies. "Legitimate interests" is a sensible concept. Now let’s read that previously-vexing sentence again from this starting point: The [collection and use] of personal data [such as email address, name, interests and preferences] for direct marketing purposes may be regarded as [being] carried out [under the consent you’ve already obtained for marketing]. 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. Finally, and hopefully this goes without saying, both feedback and market research are separate activities to direct marketing. 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. And that’s where it ends; the teaser at the end of the credits. 1 GDPR, Article 6(1)(f). Once the GDPR is applicable, can an organisation send direct marketing to customers, where they don’t know whether these customers have opted-in or opted-out to such marketing? Direct electronic marketing (e-marketing) is currently regulated under the ePrivacy Directive, which generally requires opt-in consent before engaging in such activity. Direct marketing is a sales technique used by many companies. Our Advertising 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. for the performance of a contract. 8 WP 259. What are the benefits of choosing legitimate interests? 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. Opt-in consent can be used, but is seldom legally required; The GDPR does not change this position and, in particular, does not make opt-in consent a mandatory requirement for direct marketing - it acknowledges that marketing can be conducted in reliance on legitimate interests; but Terms of Use. 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. We Recital 47 of the GDPR states that “[t]he processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” Thus, legitimate interests can be used to satisfy the GDPR’s legal basis requirement—but there is more to the story. 3 WP 259. 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. Clearwater is a Certified Information Privacy Professional (CIPP/US) and is a licensed privacy attorney in Maine and Massachusetts. According to Art. 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. Nevertheless, this does not always mean you provided your contact details in order for the organisation to market their products or services to you. Head of Deliverability. Direct Marketing & GDPR Be compliant and build trust. We are in the process of producing a new statutory code of practice on direct marketing, and will consult on its content in due course. What is the effect of the GDPR on direct marketing? Consent and legitimate interests are the legal bases most likely to be relied upon to justify direct marketing. Since the introduction of the GDPR, attention to direct marketing has increased, as it has received a lot of questions about data protection. The Benefits of GDPR for Direct Mail Marketing and Customer Communication. At this point PECR rears its head again and tightens up exactly how Legitimate Interest can be used in some situations. Are there any disadvantages? At OneTrust, we have discussed the topic of legal basis with countless organizations as they have prepared for, and implemented, the GDPR. 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. 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. Cookie Policy Here is our sample letter for objecting to direct marketing according to Art. 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. Please note, direct marketing is the promotion of aims and ideals as well as the sale of products and services. Done right, customer feedback is a vital part of “business as usual” with your customers. The GDPR recitals give guidance as to what data processing activities might be considered legitimate interests. If an organisation is relying on legitimate interests in order to conduct its postal direct marketing, it may not need to obtain consent to do so. Even though it may look like GDPR compliance brought marketers many troubles, in fact, it helped to solve them. 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? 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. GDPR Email Marketing Newsletter mailings and e-mail marketing are a fixed part of the online marketing universe. Legitimate interest can be relied upon for a whole host of data processing purposes including fraud prevention, profiling and HR but we are focusing here on direct marketing. 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. When might legitimate interests be appropriate? Direct marketing is broadly defined as sending information about future events, or newsletters or other information promoting an activity, product or service to individuals and specific rules apply if this is sent electronically and to people that the University does not have an existing relationship with (this will usually apply to third parties such as prospects, customers, visitors, people you think may be … 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). 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”. And like consent, legitimate interest is one of them. Outsourcing your direct mail solves some big problems – namely ensuring you stay GDPR complaint. News, insights and resources for data protection, privacy and cyber security professionals. 7. 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. Once the GDPR is applicable, can an organisation send direct marketing to customers, where they don’t know whether these customers have opted-in or opted-out to such marketing? Under Article 21 of the GDPR you can make a request to an organisation to stop processing your data for the purposes of direct marketing. 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. Under GDPR direct marketing is recognised as processing which can be based on legitimate interest. 2 Article 29 Working Party, “Guidelines on Consent” (WP 259), 28 November 2017, http://ec.europa.eu/newsroom/just/document.cfm?doc_id=48849. Full stop! Consent, on the other hand, can provide a great deal more certainty. 2. The GDPR applies wherever you are processing ‘personal data’. Much direct marketing (both snail mail marketing and e-marketing) is possible today on the basis of opt-out. According to the GDPR, if personal data is used for direct marketing, the data subject has the right to object against such 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? The direct marketing provisions in PECR only apply to live and automated calls, electronic mail (eg text and emails) and faxes. Privacy Policy Hence for most businesses, GDPR, direct marketing and consent represent a … Where the direct marketing involves electronic communications, however, is where things get muddy. First of all, direct mail doesn’t require the consent of end-users. Update - Legitimate Interest. Terms of Use In other words, even if opt-in consent is not required before sending marketing emails, the GDPR nevertheless requires that the recipient always be provided with an opportunity to opt-out of receiving such emails. The direct marketing provisions in PECR only apply to live and automated calls, electronic mail (eg text and emails) and faxes. “The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” Article 47. All of the factual information that follows is extracted directly from the ICO websiteand we make it clear when we are applying our interpretation. EU e-marketing rules can be difficult to navigate, and deciding whether to rely on opt-in consent, legitimate interests, or a combination of the two, is no easy task and can have immense impact on business operations. 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. 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. This must be taken into account regardless of whether personal data processing was carried out prior GDPR. Direct marketing. Privacy Center means, but the GDPR specifically refers to direct market-ing in the right to object in Article 21(3). You still have to fill in the data in curly braces. The GDPR The new General Data Protection Regulations (GDPR) will determine how your business does business, and particularly how it manages, protects and administers data in the future. 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. Direct marketing GDPR & PECR compliance. Our Advertising So unless you already run a consent basis for postal marketing, then the your best bet is probably legitimate interests. Includes consent and bought-in marketing lists, and telephone, email, text and postal marketing. In the meantime, we have already added GDPR updates to our direct marketing guidance. Therefore, reliance on legitimate interests requires a certain level of comfort with uncertainty. Direct marketing is a legitimate interest and there for does not need an opt-in - full stop, crystal clear. (For example, sending email newsletters). personalised direct marketing communications. You may, or may not, have directly provided your contact information to an organisation. 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. The Data Protection Act 2018 (DPA) defines direct marketing (DM) as: 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. Ensure that you give people a simple way to opt-out and that you screen against the Mail Preference Service (MPS). This instalment of the DMA’s GDPR guidance covers two of the legal grounds: legitimate interests and consent. Are there cases when legitimate interests is likely to apply? Can public authorities use legitimate interests? This means if you can identify an individual either directly or indirectly, the GDPR will apply - even if they are acting in a professional capacity. 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. Marketers will be able to use either consent or legitimate interest to justify their marketing depending upon the context, audience and marketing channel. Consent and legitimate interests are the legal bases most likely to be relied upon to justify direct marketing. 21 2 3 gdpr the data subject always has the right to object the processing of personal data for direct marketing purposes. This is because the GDPR acknowledges that direct marketing will often be a ‘legitimate interest’ of the data controller (legitimate interests being a non-consent based ground for data processing) and therefore consent to direct marketing is often not required under the GDPR. No matter which method you use for sending direct marketing messages the GDPR will apply when you are processing personal data. If a business ‘does’ marketing, it’s likely to do direct marketing of some description. Unsolicited direct marketing is essentially marketing contact with you that was not sought or requested by you. Under the GDPR, Recital 47 specifically calls out that the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. 9 WP 259. However, under the GDPR, additional conditions will need to be met, making consent more difficult to rely on as a legal basis for processing. It’s vexing because it is the last sentence in an otherwise well-defined section. 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). While that is true, should the e-Privacy Directive go away, then GDPR would not enforce an opt-in. 5 Directive 2002/58/EC, Article 13(2). Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes. 21(2) GDPR. This might sound painfully obvious now, but it will become relevant in a moment when we come to talk about consent. Where the direct marketing involves electronic communications, however, is where things get muddy. Who is a 'data subject' for … In this way, one can perfectly attract new customers or inform existing customers of its products and services. You must be able to prove you’ve done this. 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 General Data Protection Regulation (GDPR) you need to have an appropriate legal ground to justify your marketing activity. The new regulations came into place in 2018 - find help here. Consent has historically been one of the most common legal bases relied upon for the processing of personal data. Legitimate Interests under the GDPR. The General Data Protection Regulation (GDPR) is a new digital privacy regulation that was introduced on the 25th May, 2018. Cookie Policy Can we use it as the default basis for all of our processing? If we want to look at how the GDPR affects satisfaction surveys, we have to be clear about what satisfaction surveys are, and are not. Under GDPR direct marketing is recognised as processing which can be based on legitimate interest. 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 … He is CIPP/US, CIPP/E, CIPM and CIPT certified, and is a licensed attorney in New Hampshire. 7 GDPR, Article 21(5). 4 5 The Information Commissioner’s Office (ICO) has released … 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. From data capture, storing information and distributing direct mail campaigns, GDPR compliance is ensured every step of the way. Are there cases when the purpose will constitute a legitimate interest? At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information. 4 WP 259. While a direct marketing data subject’s consent is the safest way to be GDPR-compliant, acquiring new consent will require serious investments in time, money, and infrastructure. Data Protection Manager. Contact Brian received his JD and Certificate in Information Privacy Law with honors from the University of Maine School of Law. In the wake of the GDPR, many email marketing services have released GDPR-compliance guides specific to their platforms. Can we use legitimate interests for employee or … Direct marketing You must check if customers want to be contacted by fax, phone, post or email, and give them the chance to object. Comply to GDPR with our Direct Mail Marketing Services. 3. But if you think that you're reading this the wrong way round. Comply to GDPR with our Direct Mail Marketing Services. In the Information Commissioner’s Office (ICO) explanatory material it states, ‘processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest,’ which could be read as, ‘carry on as before.’ Please note, in the first instance, that’s it’s talking about the processing of personal data, not the physical act of sending out a mailing through the post. 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 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. That’s usually because if done right, it works. Let me explain: You have a collection of signup process for your marketing program. The application of the General Data Protection Regulation principles in modern digital and direct marketing has shown to be one of the most technically challenging areas since it also provokes the application of the whole array of national laws and directives that govern individuals’ rights, like e-Privacy. Privacy Policy The electronic mail ‘soft opt-in’ only applies to the commercial marketing of 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. The GDPR refers in its recitals to the possibility to rely on legitimate interest for direct marketing purposes. the individual) is crucial. In this role, Clearwater provides counsel, leadership, and guidance on all legal issues relating to OneTrust’s corporate environment. Brian Philbrook serves as Privacy Counsel at OneTrust, a software platform that helps privacy professionals operationalize data privacy compliance and Privacy by Design. 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. GDPR however, is not the only European law or regulation that covers the email marketing industry. About Marketers must consider their legal basis both for profiling customers and sending the communication. GDPR is a new EU regulation to replace Directive 95/46/EC. 6 https://ico.org.uk/for-organisations/guide-to-pecr/electronic-and-telephone-marketing/electronic-mail-marketing/ Direct Marketing Under the GDPR. Contact checklist. 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. This is a difficult question to answer, and as most lawyers will tell you: “it depends.”. 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”. A common misconception in relation to direct marketing is that consent from the data subject (i.e. Do not sell my information, Direct Marketing Under the GDPR: Consent vs Legitimate Interests. If an organisation is relying on legitimate interests in order to conduct its postal direct marketing, it may not … 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. Through those processes you can demonstrate clear and specific consent. GDPR is here to stay. The exception is where you have bought something, given the organisation your details, and did not opt out of marketing messages. 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. The introduction of the General Data Protection Regulations in May 2018 was a watershed moment in charity marketing and … Alternatively, our live, online training ‘Data Protection and Direct Marketing‘ could be just what you need. 21(2), (3) GDPR the data subject always has the right to object the processing of personal data for direct marketing purposes. Amazon UK provides two helpful examples of this. Who is a 'data subject' for the purposes of the Data Protection Act 1998? It's not saying that legitimate interests is a basis for direct marketing activities without consent. Emarsys UK Ltd Start typing to see results or hit ESC to close, Risks Preferable To Fear When It Comes To Boardroom Cyber Investments, 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. The need to include a specific opt-out in every marketing message to allow an individual to withdraw their consent at any time still stands. For example, the popular MailChimp service offers a GDPR consent collection form, with detailed instructions on how to use it: If your email marketing service does not offer the features you need to ensure GDPR compliance, it may be time to switch services. Andrew Clearwater serves as Director of Privacy at OneTrust. 6. Yes. Each processing activity requires a legal basis, so it can be justified under GDPR. Customer Feedback vs Market Research vs Marketing. What this statement is doing is actually reiterating that there are higher permission standards for digital marketing. 5. You need a legal basis for collecting, storing and using personal data. 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. Outsourcing your direct mail solves some big problems – namely ensuring you stay GDPR complaint. Under the GDPR, Recital 47 specifically calls out that the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. From data capture, storing information and distributing direct mail campaigns, GDPR compliance is ensured every step of the way. Are there any exceptions? Direct marketing under the GDPR: general overview. 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. He also provides public policy analysis in the areas of privacy, data security, information policy, and technology transactions. Does the GDPR apply to business-to-business marketing? 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