Transcript of the Video
Good afternoon ladies and gentlemen. Suzanne Dibble here, data protection law expert coming to you raw and uncut, from a very hot and sweaty Thailand. Yes, there's a little bit of perspiration going on today.
But today I'm going to talk to you about the soft opt-in. Now, I've talked about it a number of times on different videos but never specifically by itself. So I'm doing this video by request so that it's easy for you to find the list of videos that I've done.
The soft opt-in, it's actually nothing to do with GDPR. It is a different regulation called PECR, or the Privacy and Electronic Communications Regulations, which talk about a number of things. And one of which is whether you can send unsolicited direct marketing communications, electronic communications that is, either email or text to individuals or corporate subscribers.
Now there's been a lot of discussion in GDPR forums about whether B-to-B marketing communications are treated differently to those sent to individuals. And this is where the confusion comes from. Now, GDPR does not distinguish between individual and corporate subscribers. PECR does. And what PECR say is that you can email corporate subscribers without their consent. Just PECR. Obviously, you still need to think about everything that we've talked about already for GDPR, but for PECR purposes you can send unsolicited, direct marketing emails and texts to corporate subscribers.
Now, what's a corporate subscriber? It's actually easier to tell you what an individual subscriber is because if somebody is not an individual subscriber they're a corporate subscriber. And individual subscriber is as the name suggests, an individual. Someone who you're not emailing in a business capacity. But unfortunately, it's not quite that simple because it also includes people who are sole traders and partnerships even if you are emailing them in a business capacity. So you have to be very careful about relying on the corporate subscriber rule.
So essentially, if you're emailing individual subscribers, which includes as I say, sole traders and partnerships, then you have to get their consent before you send them an electronic communication direct marketing, whether that be email or text or whatever. You need their prior consent.
Now there is an exception to that, and that is what's known as they soft opt-in rule. And what the soft opt-in rule says is that if you have fulfilled certain criteria, then you can email individual subscribers without their explicit consent. And those three conditions are; number one, that you have already sold your goods and services to that individual, and that you are emailing them about goods or services that are the same or similar as those goods or services. There's also something that says that if you were in the course of negotiations for the sale, that will also apply. The contract doesn't actually have to of been formed. You need to have been in negotiations for those goods or services or the person is a customer of those goods and services. And you have to be sending them something similar to that. So if you were in the plumbing business and you suddenly decide to start selling mobile homes, you would not be able to rely on the soft opt-in. It has to be a similar product or service.
In addition, at the time that you collected their details, you had to advise them of their right to opt-out of marketing communications. And you had to send it to them every subsequent time that you sent them a direct marketing communication. And typically that is the opt-out that you see at the bottom of the emails. If you fit into those criteria, so they're either customers or you've been in negotiations with them. Secondly, you're sending them details of goods or services that are the same or similar to what they previously bought or been in negotiations with. And thirdly, at the time that you collected their details, you gave them the right to opt-out of marketing communications, and you've reminded them of that right on every subsequent marketing communication, then you have what is known as the soft opt-in rule. Which means that you don't need their explicit consent to send marketing communications to individuals.
Now, obviously, you need to bear all this in mind whilst also thinking about GDPR. And as I said on my video a couple of days ago, if you want to find a way that doesn't involve consent for whatever reason, then look closely on legitimate interests and the other grounds of processing because remember, consent is just one of the lawful grounds of processing personal data under GDPR. So look at whether it's a contractual ground, look at whether it's a legal ground, look at whether it's under legitimate interests. You then need to look at PECR to work out whether you can in fact send ... Talking about marketing communications, then you would need to look at PECR on top of GDPR.
I hope that makes it clear. I had seen some comments in this group that suggest that the soft opt-in rule is going away. That's not the case. So I've seen the draft amendments to the PECR and that's not the case. The soft opt-in will still be applying. So I hope that's clear.
As always, any questions, comment on the video below. Apologies about the lighting here. It seems to have gone a little bit strange, but hopefully, you can hear me, and that's the most important thing. Have a great Sunday whatever you're doing, and I'll see you tomorrow.
