Marketing — is it an ‘opt-in’ or an ‘opt-out’?

We advise clients regularly on marketing. Yes, data protection has a great deal to do with marketing  — it’s all about what you can and can’t do with a customer’s or prospective customer’s data. 

 

When to use consent — the opt-in

Consent is the legal basis for processing when you have not had any interaction with a person. We are talking about B2C now and not your B2B contacts (that’s another blog). So use a tick box to ask a person if they would like to sign up to your newsletter, for example. 

 

When to use legitimate interest – the opt-out 

Marketing using the legal basis of legitimate interest is called the ‘soft opt-in’.  It’s a bit of a misnomer, really, as legitimate interest is actually an opt-out where consent is an opt-in. You can’t use legitimate interest with third party bought-in lists (don’t use those anyway as they are generally unlawful and a whole heap of trouble!)

Marketing using legitimate interest and an opt-out tick box is used with (1) existing customers and (2) those who have begun ‘negotiations for a sale.

First, the rules* for marketing by electronic means: 

* for those of you that are interested, the rules are from the Privacy and Electronic Communications Regulations (PECR)

 The idea is that if an individual bought something from you recently or entered negotiations for a sale, that they are probably happy to receive marketing from you about similar products or services even if they haven’t specifically consented. 

So, organisations can send marketing texts or emails if:
  • they have obtained the contact details in the course of a sale (or negotiations for a sale) of a product or service to that person;

  • they are only marketing their own similar products or services; and

  • they gave the person a simple opportunity to opt out of the marketing, both when first collecting the details and in every message after that.

The rules only apply to commercial sales. They do not apply to non-commercial promotions so charities, political parties or other not- for-profit bodies will not be able to rely on the soft opt-in when sending campaigning texts or emails, even to existing supporters. Charities can use legitimate interest to send fundraising appeals by post but not by email or text. 

Second, it’s pretty clear if a person is a current customer but what is a ‘negotiation for a sale’? How far does that go?

‘Negotiations for a sale’ means that the person should have actively expressed an interest in buying your products or services. Examples of ‘negotiations for a sale’ include: putting items in a cart, downloading a paper from your website or asking for more information about a product or service.  In all of these cases, you can email that person with information about your own similar products or services.

You must tell people in your Privacy Notice that you are using legitimate interest in your marketing; for example, if they have an ‘abandoned cart’, tell them that you will be sending them reminder emails. Just be sure to include an unsubscribe in all of your marketing communications.

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