The consent trap - one month after the GDPR took effect

June 20, 2018

Having got past 25 May 2018, the day the GDPR came into effect, the torrent of GDPR emails is beginning to abate.

It would be interesting to analyse how many GDPR emails were sent in the run up to the go live date seeking consent to continue being in contact, as against the percentage of recipients who then responded to opt-in. And how many trumpeted a new privacy policy, as against the percentage of recipients who actually read the new policy. I suspect the percentages in each case will be low! Indeed, many people have expressed satisfaction that, by doing nothing and not confirming consent when requested, they can reduce the flow of unwanted spam into their inbox.

But were all these emails necessary, and in particular, was it actually necessary to seek consent?

In many cases it was not necessary to seek consent to “stay in touch” and continue email marketing.

Under GDPR consent is one of the legal bases for processing, but is not the only one. In most cases, organisations will be able to rely on the “legitimate interests” ground to remain in contact with their contact list. Recital 47 GDPR expressly says that processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. Subject to confirming this in a “legitimate interests assessment”, many businesses can rely on the concept of ‘legitimate interest’ to justify processing client personal data on their mailing lists without the need to re-affirm the consent. GDPR expressly acknowledges that businesses may have a legitimate interest in direct marketing activities, which could include circulating invitations to events, new products and services, or updates etc. This is an appropriate basis for data processing where you use data in ways that people would reasonably expect and has a minimal privacy impact especially as a recipient should always be able to easily opt-out of future marketing.

While permission based marketing is certainly to be preferred, unless it is required, there is no need to seek specific GDPR-grade consent which may predictably result in the contact database being decimated as a result of recipient inertia and GDPR fatigue.

That all said, there is a key exception where consent to email marketing may be required. This requirement is not to be found in the GDPR; instead it is in the Privacy and Electronic Communications Regulations (“PECR”). These have been around since 2003 and are currently being upgraded to GDPR level with a new ePrivacy Regulation, although this did not make it into law at the same time as GDPR as was the plan; it is likely to come on stream within the next year or so.

PECR contains supplemental rules on consent for electronic marketing (i.e. marketing by email, phone, SMS or fax). Whilst you may not need consent under the GDPR, you may need consent under PECR.

Different rules apply depending on whether the marketing is sent to an ‘individual’ or ‘corporate’ subscriber’.

Marketing to a corporate email address does not need consent. However, if you are sending unsolicited marketing emails to individual subscribers (a personal email address), then you will need the individual’s consent, unless the so called “soft opt-in” applies (e.g. where the individual is an existing customer).

In summary, assuming you can justify “legitimate interests” for the continued contact, consent is not needed to continue marketing by post, or by email to existing customers or to contacts at corporate email addresses. Consent will only be needed to send direct marketing by email to personal email addresses of individuals who are not customers for similar products and services.

Ironically, in an effort to be compliant, the email requesting consent to future marketing may itself be unlawful if consent was not already in place, and the ICO has fined organisations for engaging in this (e.g. Honda and Flybe). So, sending emails seeking consent may be either unnecessary or unlawful.


Related pages:

General Data Protection Regulation (GDPR) more

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