Yesterday, I presented a discussion of Legitimate Interest as the basis of GDPR communications. For B2B companies in the UK, the 2003 PECR (The Privacy and Electronic Communications Regulations of 2003) law is often applicable when assessing GDPR and Data Privacy:
The PECR discusses soft opt-ins for individuals, sole traders and some partnerships, but not B2B. The ICO states that “the term ‘soft opt-in’ is sometimes used to describe the rule about existing customers. The idea is that if an individual bought something from you recently, gave you their details, and did not opt out of marketing messages, they are probably happy to receive marketing from you about similar products or services even if they haven’t specifically consented. However, you must have given them a clear chance to opt out – both when you first collected their details, and in every message you send. The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts.”
Legitimate Interest also applies to data licensing relationships and marketing partnerships. If personal data interest is maintained for a specific purpose (e.g. Technology Sales), data licensing and sharing needs to be kept within the original scope.
Legitimate Interest and Consent also apply within a company. Data maintained for one product line may not be usable for others, particularly if the firm spans multiple sectors.
The UK Direct Marketing Association published guidance on the subject of Legitimate Interest helping make sense of Article 6.1.f:
“Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”
And Recital 47:
“The legitimate interests of a controller, including those of a controller to which the Personal Data may be disclosed, or of a third party, may provide a legal basis for processing, provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, taking into consideration the reasonable expectations of data subjects based on their relationship with the controller.”
Once the basis of holding personal data is met, companies have additional conditions to meet around transparency (notification and the right to object), data minimization (Is there a legitimate interest in collecting all of the fields? How long is data retained?), and reasonable expectation (limited impact to personal and private life; ensuring data accuracy).
For individuals who opt out, firms must retain suppression lists to prevent the re-collection of personal information. The suppression list should be the minimal information required to ensure the individual is not added back into the marketing database at a later date. With B2B, the list may simply be name and email.
The GDPR also sets out expectations which are relationship specific:
- Suspects – legitimate interest, reasonable expectation, transparency
- Prospects – reasonable expectation; consent
- Clients – contract, legitimate interest, reasonable expectation, data minimization, transparency
Part III of Rhetorik’s presentation discusses GDPR myths and applicable laws across Europe.