Kristy Gouldsmith
Are you confused about using consent and legitimate interest? Not sure where it applies in B2C marketing emails and B2B marketing emails? Read on for an explanation….
B2B EMAIL MARKETING
Guess what? Consent doesn’t apply for B2B emails for corporate subscribers. The legal basis is legitimate interest — essentially the legitimate interest of one business to market its stuff to another business. If consent was the requirement, then a business in Cornwall couldn’t send an email to a business in Scotland unless the two people met on the street somewhere and one asked the other if they could send emails. If consent was the legal basis, then it would be almost impossible for one business to market to another.
The following is the ICO guidance:
When does PECR apply to business-to-business marketing?
PECR applies to the sending of direct marketing messages by:
– live or automated phone call;
– electronic mail (eg emails and text messages); and faxes.
The marketing rules in PECR refer to “subscribers”. For example, this means the customer named on the bill for a telephone line or internet connection. There are two types of subscribers in PECR – corporate and individual.
Corporate subscriber covers subscribers that are a corporate body with separate legal status. This includes:
– companies;
– corporation soles;
– limited liability partnerships;
– Scottish partnerships;
– some government bodies; and
– any other body corporate or entity that is a legal person distinct from its members.
So, for example, the email address or telephone number of an employee at a corporate body would constitute a corporate subscriber for the purposes of PECR because the ‘subscriber’ is their employer.
However not all types of businesses are classed as corporate subscribers under PECR. Some are actually classed as individual subscribers. These include:
– sole traders;
– certain types of partnerships (eg non-limited liability partnerships or other types of English, Welsh and Northern Irish partnerships); and
– other unincorporated bodies of individuals.
This means they are treated the same as individuals and have greater protections under PECR.
PECR applies to direct marketing sent to businesses in the following circumstances:
Marketing method does PECR apply to?
‘Live’ phone calls to corporate subscribers ✓
‘Live’ phone calls to sole traders and some types of partnerships ✓
Automated phone calls to corporate subscribers ✓
Automated phone calls to sole traders and some types of partnerships ✓
Faxes sent to corporate subscribers ✓
Faxes sent to sole traders and some types of partnerships ✓
Electronic mail (eg emails or text messages) to corporate subscribers ✘
Electronic mail (eg emails or text messages) to sole traders and some types of partnership ✓
B2C EMAIL MARKETING
When to use consent in marketing- the opt-in
Consent is the legal basis for processing when you have not had any interaction with a person. 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.
Data compliance in marketing*
* 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.
Understanding negotiation for sale in marketing
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.
If you would like more information about processing data correctly, please contact me.