Re-consenting to marketing under GDPR?

 Nov 29, 2017 9:00 AM
by Derek Lackey

One of the questions we’ve most commonly been asked in recent months is “does the GDPR mean we have to get fresh consents from our entire marketing database?”  In many (indeed, perhaps most) cases, the answer is “no” - though the explanation for this is not all that straightforward, and so the confusion here is easy to understand.

This confusion stems in large part from Recital 171 of the GDPR, which reads: “Where processing is based on consent pursuant to Directive 95/46/EC, it is not necessary for the data subject to give his or her consent again if the manner in which the consent has been given is in line with the conditions of this Regulation, so as to allow the controller to continue such processing after the date of application of this Regulation” (emphasis added).

The idea here is that, if you collected consent for data processing pre-GDPR, then you can continue to rely on that consent post-GDPR.  So far, so good.  But the sting in the tail is that this holds true only if the consent you obtained pre-GDPR was obtained to a GDPR standard - i.e. the consent was “unambiguous” and demonstrable (i.e. auditable) in line with the requirements of Art 7.  Since these requirements didn’t apply pre-GDPR, it follows for most businesses that the consents they obtained pre-GDPR won’t be valid once the GDPR comes into effect - and so they may need to go out and get new GDPR-standard consents.  That, or accept the risk of non-compliance.

At this point, you might be thinking “So all our marketing consents are invalid?  Do we really have to go and get fresh marketing consents from x thousand / million customers?”  Things are not quite as bleak for marketers as it may seem, however.

Marketing regulation under the GDPR

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 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.  In fact, it often won’t be.

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.  Recital 47 of the GDPR actually says that:

“The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”

This means, for example, that if a business wishes to send postal marketing about a new product to its customer base, it can often do so in reliance on its ‘legitimate interests’ - it generally does not need its customers’ consent to this mailing.  It will, however, always need to offer them an opt-out (Art 21(2)).

Marketing regulation under the e-Privacy Directive

Marketing regulation under the GDPR is only half the story, however.  Europe also has a separate law - the Privacy and Electronic Communications Directive(or e-Privacy Directive) that contains supplemental rules governing consent requirements for e-marketing, i.e. marketing sent over electronic communication channels (such as phone, fax, e-mail and SMS, for example).  When sending e-marketing, these supplemental consent rules apply in addition to the need for businesses to identify lawful processing grounds under the GDPR.

Put as simply as possible, these rules require opt-in consent for e-mail and SMS marketing, unless an individual’s contact details were collected in the context of a sale and the individual was given the ability to opt-out at that time.  If so, first party e-mail and SMS marketing is possible on an opt-out basis (though third party e-mail and SMS marketing still require opt-in).  Similarly, phone direct marketing is also generally possible on the basis of opt-out provided the call list is first screened against the relevant country’s national do-not-call registry (as well as the business’s in-house opt-out list). 

Consequently, much of the direct marketing that businesses send today is sent lawfully on the basis of opt-out, not opt-in (i.e. consent).  In these instances, there is therefore no legal requirement for these businesses to seek fresh consents under the GDPR because their marketing was never based on consent (opt-in) in the first place. 

Looking forward to the e-Privacy Regulation

This is not quite the end of the story, however. 

The e-Privacy Directive is, itself, undergoing reform presently - to be replaced by a new e-Privacy Regulation at some point in the future.  The European Commission has set an optimistic goal of achieving adoption of the e-Privacy Regulation by May 2018 - i.e. to see it enter into force at the same time as the GDPR - though whether this timescale can be realised is uncertain.

Nevertheless, broadly speaking, the original draft of the e-Privacy Regulation proposed by the Commission largely retains (at Art 16) existing e-marketing rules as they apply under the current e-Privacy Directive.  The European Parliament has, to date, seemed relatively accepting of at least this aspect of the Commission’s proposed reforms, making it likely that opt-out e-marketing will remain possible once the e-Privacy Regulation is finally adopted. 

Still, it is worth remembering that it is only draft law at present and so e-marketing rules may evolve further as the Council of the EU and the Parliament enter their trilogue negotiations.  Marketers will need to monitor developments here closely.

The law of unintended consequences?

While it will be good news for businesses that their existing lawful opt-outmarketing is generally unaffected by GDPR, businesses which previously sought opt-in consent may now find themselves technically needing to refresh those consents for GDPR compliance - an ironic result for businesses that had previously looked beyond strict legal compliance and had taken a best practice, opt-in approach to marketing. 

These businesses will...

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