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Dan Griffin

Posted 8 January 2018
by Dan Griffin

GDPR – Can I rely on a ‘legitimate interest’ instead of consent when sending direct marketing emails?

For personal data to be processed lawfully (including sending marketing emails) it must come within one of the lawful justifications contained in the GDPR. These lawful justifications include the ‘legitimate interest’ of the data controller. Legitimate interests include a business wishing to use personal data such as email addresses to promote itself.

Some have seized on this as a justification consent not being required to send people marketing emails. The reality is not as simple.

The Privacy and Electronic Communications Regulations 2003 (PECR) have required individuals to opt in to receive marketing communications for some years now and the GDPR does not change that. Businesses can rely on a ‘soft opt in’ from an existing customer who has provided an email address but for everyone else, their consent needs to be proven by way of an affirmative action such as a tick box on a website.

The GDPR does not seek to override the PECR and so businesses cannot rely on ‘legitimate interest’ in sending individuals marketing emails where they have not previously purchased something or opted in.

Even asking contacts who you are not sure have opted in whether they would like to receive further emails could breach the PECR. This is deemed direct marketing and has resulted in significant fines from the ICO.

Essential steps organisations need to take:

  • Review the wording on your website asking for consent to make sure it lets individuals know what their personal data will be used for
  • Check whether any tick boxes opt in or opt out and if they opt out, is this permitted in the context?
  • Ensure data capture methods record whether individuals consent to receive marketing emails and audit existing databases and check whether consent has been provided
  • Do not send emails to contacts you cannot demonstrate have opted in or are existing customers.

If you need any advice regarding this matter, then please to do not hesitate to contact our experienced team of intellectual property solicitors.

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About the author

Dan Griffin

Dan Griffin

Associate and Solicitor

Associate within commercial litigation