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Refreshing consent to marketing – be careful not to breach current regulations!

13/11/2017
Lodders Solicitors - Charity Law

Are you in the process of reviewing your customers’ consent to marketing in light of the introduction of the GDPR? If so, be careful not to breach the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). Mark Lewis, Charity Law and GDPR expert at Lodders, explains.

Contacting individuals where no customer consent information held

The Information Commissioner’s Office has fined Honda Motor Europe Ltd £13,000 for sending 289,790 emails aiming to clarify certain customers’ choices for receiving marketing.

Honda sent an email to those individuals on the database where no “opt in” or “opt out” information was held. The email aimed to clarify the marketing preferences of those individuals they were uncertain of.

Honda believed they were customer service emails to help the company comply with data protection law. Honda couldn’t provide evidence that the customers had ever given consent to receive this type of email. Therefore by sending an email to determine whether people wanted to receive marketing without the necessary consent, they were in breach of PECR.

Steve Eckersley, ICO Head of Enforcement, warned:

Businesses must understand they can’t break one law to get ready for another.”

Contacting individuals where customer has opted out

The ICO fined Flybe £70,000 for sending over 3.3 million emails to customers who had previously explicitly opted out of direct marketing. Flybe requested the email be sent for data cleansing purposes. The email advised recipients to amend any out of date information and update any marketing preferences.

Moneysupermarket.com Ltd has been fined £80,000 by the ICO for sending 7.1 million emails updating customers who had previously opted out of direct marketing with its Terms and Conditions. The email also asked the individuals if they would like to reconsider their marketing preferences and consent to future marketing.

Steve Eckersley said:

            “Organisations can’t get around the law by sending direct marketing dressed up as legitimate updates. When people opt out of direct marketing, organisations must stop sending it… They don’t get a chance to persuade people to change their minds. Emails sent by companies to consumers under the guise of ‘customer service’, checking or seeking their consent, is a circumvention of the rules and is unacceptable. We will continue to take action against companies that choose to ignore the rules.”

ICO has published detailed guidance for firms carrying out direct marketing, which is available on their website.

What does this mean for you?

You may not contact a person if:

  1. Consent has been refused or withdrawn
  2. Consent position is unknown

You may contact a person if you have their consent. You may wish to consider updating this consent in line with the new GDPR if previous consent is no longer compliant (for example if pre-ticked boxes were used).

For more information on data protection regulations or on Lodders’ Charity Law services, please contact Mark Lewis on 01789 206135 or via email.

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Diane Wood, V Formation on 07887 794507 or by email

Get in touch

For more information on data protection regulations or on Lodders’ Charity Law services, please contact Mark Lewis on 01789 206135 or via email.