CONSENT FOR MARKETING DATA

21 July 2018

• Opt-in
• Opt-out
• Marketing data
• Marketing consent wording
• Consent
• Email Marketing
• Obtaining consent
• Written consent
• Marketing
• opted in data

Consent cannot be inferred. It cannot be implied. A badly written opt-out buried in terms and conditions is not consent.

The 1995 Data Protection Directive defines consent as:

“Any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”

And “the data subject has unambiguously given his consent"

By contrast, GDPR requires consent to be "Demonstrable". It states explicitly that consent can only be obtained by a "statement or by a clear affirmative action”.

In respect of the Privacy and Electronic Communications Regulations (PECR), based on Directive 2002/58/EC (often known as the ePrivacy Directive). Which defines consent as that which comes from the Data Protection Directive, and so the consent under ePrivacy must be unambiguous, freely given, specific and informed.

Therefore, where emails are sent, PECR says that the recipient must have “previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender". 

Quite simply, if you have consent to send emails, you don’t need to ask again. If however you do not have freely given, specific, informed and unambiguous consent, then do not send.

However, it would not be unlawful to write to your contacts and ask for consent, because post is not electronic so PECR is not applicable.

Sending emails to people who have not opted-in is unlawful unless you have “soft opt-in” (i.e. previous customers).