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GDPR, marketing and you

Tuesday 01 May 2018

Make sure that all of your organisation’s upcoming marketing campaigns comply with the relevant regulations so that you can be confident you are protecting personal information.

Marketing under the GDPR (whether postal, phone, e-mail, SMS or any other form) 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.

The regulation states that where processing is based on consent, you don’t need to gain consent again if you are confident that the way the consent was given previously meets the conditions of the Regulation.

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. However, it is important to remember that this only holds true if the consent you obtained pre-GDPR was acquired to the new standard - i.e. the consent was explicit, thus auditable. Since these requirements didn’t apply pre-GDPR, it may be that the consents obtained pre-GDPR might not be valid come May 25.

Electronic marketing

The most important thing to remember is that you can only carry out marketing if the person you're targeting has given you specific permission to contact them - and this applies to emails, texts, picture messages, video messages, voicemails, direct messages via social media or any similar message that is stored electronically.

However, there is an exception to this rule known as the 'soft opt-in', which applies if the following conditions are met;

  • you've obtained a person's details in the course of a sale or negotiations for a sale of a property or service;
  • the messages are only marketing similar products or services to those previously supplied; and
  • the recipient is given a simple opportunity to refuse marketing, and if they don't opt out at this point, are given a simple way to do so in future correspondence.

But even when relying upon the soft opt-in, it's important to consider whether the individual would reasonably expect messages about the service in question, and when you send an electronic marketing message, you must tell the recipient who you are and provide a valid contact address.

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 via electronic communication channels such as phone, fax, e-mail and SMS. When sending e-marketing, these supplemental consent rules apply in addition to the need for businesses to identify lawful processing grounds under the GDPR.

The ICO have put together a direct marketing checklist and a direct marketing self assessment test designed to assess your business in the area of direct marketing in line with data protection legislation and the Privacy and Electronic Communications Regulation (PECR).

Telephone marketing

When it comes to telephone marketing, agents must not make uninvited live calls to anyone who has told you they don’t want your calls or any number that is registered with the Telephone Preference Service (TPS) or Fax Preference Service (FPS). These services are operated by the Direct Marketing Association and allow people to register their numbers to opt out of receiving unsolicited calls or faxes.

You can call any individual who has specifically consented to receive marketing calls from you and you can also make live calls without consent to a number if it is not listed on the TPS – but only if that person hasn’t objected to your calls in the past. In practice, this means you will need to screen most call lists against the TPS register and will also need to keep a ‘do not call’ list of people who object or opt out, and screen against that as well.

Postal marketing

Postal marketing can form an important part of any organisation's overall marketing strategy - from simple flyers to response forms, postal campaigns can generate important new leads and business.

However, some postal marketing may be unwanted, and as with electronic marketing, if the person or organisation you're targeting asks to be taken off your mailing list, you must comply with their request. There are no exceptions to this rule, and if you fail to comply, the individual can apply to the courts for an order against you under section 11 of the Data Protection Act.

Like with telephone marketing, consumers are able to opt out of receiving unwanted mail. The Mailing Preference Service (MPS) is a service set up by the direct marketing industry to help people who don't want to receive 'junk mail'.