Expect more 'opt-in' uncertainty

EU discussions are advancing on the subject of opt-in requirements for data-driven marketing. The prospects sound bad for business but the law still has a long way to go.


Most recently, amendments to the draft data protection directive, which aims among other things to require explicit consent before marketers can process individuals’ data, have included an attack on the practice of pre-ticked permission boxes assuming consent. If the law passes in its current form and is enforced accordingly, the Direct Marketing Association says it will “severely restrict” DM - and in its current form that would be true.

But brands might be more optimistic if they look back at what happened with the implementation of the so-called ‘cookie law’, which requires consent before websites can use cookie files to remember users’ online preferences or track their behaviour. After dire warnings that it would fatally hamstring the online advertising industry, the final law was just vague enough to allow individual countries room for interpretation.

In the UK, the Information Commissioner’s Office allowed website owners a year’s grace before enforcing the law and even made an 11th-hour declaration before doing so that getting ‘implied consent’ would be considered sufficient. In other words, for now at least, all companies have to do is tell users that if they carry on using a website, it’s assumed that they consent to the use of certain cookies.

There’s good reason to believe that a similar course could be taken again, and that the UK will once more end up with a solution that doesn’t severely impact on businesses’ ability to send marketing communications but still pays lip service to privacy campaigners in Brussels. UK governments of different colours have consistently advocated a pro-business line on topics of data privacy.

What the current Government will certainly want to avoid is the UK replicating the situation in Germany. There, recipients of commercial emails must confirm after signing up to a list that they had indeed intended to do so. The original legal advice had been that an email with a confirmation link - known as the “double opt-in” - is a suitable way of getting this consent.

But a court in Munich threw this into confusion in November 2012 by ruling that a company’s confirmation email was a commercial message and could not, itself, be sent without explicit permission.

This state of affairs, where brands are in a catch-22 and sending out direct marketing becomes a regulatory risk by its nature, will hopefully not happen here. Instead we could end up with something similar to the inelegant but unavoidable cookie notifications that now appear on UK-based websites.

Even if that’s the case, however, it makes sense to plan for all eventualities.

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Readers' comments (4)

  • As if Europe hasn't got anything more important to do...

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  • The optimism held by Michael Barnett regarding the possible impact of the draft EU Data Protection Regulation (DPR) on businesses that use one-to-communication with customers and prospects to drive sales is dangerously misplaced. The DPR poses a very real threat to our industry and the UK economy, so we can't afford to slip into complacency, cross our fingers and hope for the best.

    The analogy with the Cookie law on which Michael bases his optimism does not hold. The Cookie law comes from the EU Privacy & Electronic Communications Directive. An EU directive merely sets out a 'legislative framework'; it's then down to EU member states to implement it as they see fit. This allowed the UK Information Commissioner to take a more business-friendly interpretation of what constitutes 'consent' for the use of cookies. An EU regulation is entirely different. There is no such scope for national governments to put their own slant on an EU Regulation, which must be adopted word-for-word into national law.

    The latest changes to the DPR announced by the EU (8 January) make it even worse for businesses than first feared. Changes to clauses such as those regarding the definition of personal data, limitations on customer profiling, consent to direct marketing and the so-called 'right to be forgotten' will severely infringe the right of companies to communicate one-to-one with customers. This would have an immediate knock-on effect for businesses; recent research published by the Direct Marketing Association (DMA) estimates that the proposed legislation would cost the UK economy £47 billion in lost sales generated by one-to-one communication to customers.

    The DPR is not a done deal though. Within the next 180 days, the legislation will start making its way through the European Parliament. We're leading the industry's campaign to lobby the lawmakers in Brussels to ensure they produce a piece of balanced legislation that protects the data privacy rights of people that is also fair to businesses. The DMA's Data Protection 2013 conference on 8 February will give marketers the exec summary on the imminent threat to their businesses and how they can protect their livelihoods by petitioning their MEP to ensure they understand what is at stake.

    Chris Combemale, executive director, DMA

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  • Hi Chris. Thanks for your comment.

    I don't intend to suggest that the law will take effect differently in the UK. But during the negotiations in the European parliament there is still an opportunity for it to be amended, and there are strong voices from the UK that will argue for changes that can please both businesses and consumers concerned about privacy.

    I appreciate your point, though, that this will only happen if groups such as marketers and the DMA, via the UK's MEPs, make effective representations in those debates.

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  • Hmmm, could this also be the beginning of the end for the DMA? I hope that they are sticking all of their resources behind their argument against the draft legislation and not just relying on people to lobby their MEP's, it may not be enough.

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