Digital marketers have reason to be optimistic after European authorities complete a U-turn on the previously proposed stringent data regulation. The latest official communiqué indicates the current UK marketing data regulation will remain largely unchanged.
Data rules U-turn
The previous official report of discussion on the new data rules back in the late autumn clearly indicated the likelihood of a draconian type law that would prohibit use of tracking data, and no profiling or segmentation without explicit consent. This threatened the future of digital advertising. But now any data that cannot directly identify an individual is considered to be within the boundaries of use. However, in terms of profiling there will be the right of consumers to opt out.
Whether or not online identifiers such as cookies fall into the definition of personal data, will depend on where they are placed in the online ecosystem, under the new regulations. A cookie placed by an Internet service provider will be classified as personal data as it could identify the individual, but a cookie placed by an advertiser that cannot be linked to an email address or any other personal information is not likely to be presumed personal data. This represents a massive about face by the European authorities.
In addition, consumer consent rules have been significantly eased. The previous report stated opt in permission would need to be based on consumers electing to receive messages based on given subject matter and given communications channel. According to the latest statement this is no more, and regulation will be more or less what we have now.
Debate in Europe
The trilogue responsible for deciding the new regulations – the EU Parliament, Commission and Council – have for the time being relented from their previous stance and put the interests of business, and in particular SMEs first.
For direct marketers the previous stance of requiring consumers to agree to opt in to specific subjects and forms of communication before any messaging could take place has been replaced with consent needing to be ‘unambiguous’ as the key qualification.
Without the change in policy it would have ruled out any leeway to send messages on subjects unless they were agreed in advance, and sent by a method also agreed. The key criterion for consent now is being clear in proposing that communication will take place with an emphasis on transparency and plain language.
The policy change is based on the technicality of legitimate interest now being considered reason for companies to use personal data for marketing purposes.
The revised draft of the law more or less mirrors existing UK rules regarding consent, though all opt in terms and conditions will need to be re-written. Plus there are non specific warnings that data users will have to more rigidly abide by the law, and make careful assessments of relationships with individuals. Quite what this means, and how it will manifest itself is unclear.
Punishment for breaches of the new law are proposed as being as high as 4 per cent of turnover, which for major corporations applies to global income.
There was also concern that companies would be forced to appoint internal data protection officers, but any thoughts of mandatory appointments for SMEs has gone. For larger companies, and those that specialise in processing data, such a position will be compulsory, though most within these two categories will already have a data protection officer.
There will be a right to be forgotten, and free access data provision, but the latter only applies in reasonable circumstances yet to be defined.
Implications for companies
These two changes to the law may have the biggest impact for some companies. The right to be forgotten involves creating an easily recognisable way of requesting that personal information is erased, and the request will have to be acted upon promptly. For most companies this will involve creating a new data protocol, plus many CRM systems do not have an erase facility. Software changes may have to made.
Access data will be free rather than the £10 that can currently be charged. For major users of consumer data, such as financial companies, providing members of the public with details of their data files could add up to be an expensive procedure.
The new data law looks to be a great deal more commercially friendly than it did in the last announcement, but it would be wrong to assume the latest in the trilogue discussions will automatically be the basis of the full and final publication of the regulations due to be made public at the end of March. It could be changed back again, and the European Parliament, which was the member of the trilogue to put forward the most rigid terms, has yet to vote.
Until we see the announcement in March there is still a need to be cautious, but based on the current proposed draft there is every reason to be optimistic.
By Dene Walsh, Operations and Compliance Director Verso Group, and Chair of Enforcement and Regulation Hub, Direct Marketing Association Contact Centre and Telemarketing Council
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