Transcript of the Video
Good evening, ladies and gentlemen. Suzanne Dibble here, data protection law expert coming to you raw and uncut, and just wanted to pick-up on a discussion that's been going on in the group today about GDPR and whether you can incentivize people to opt-in, so a lady posted in the group. Let me just read that for you. "I just received an email from a company that I am subscribed to, and they offered me a 10% discount code with them to thank me if I opted-in. Is this legal? Great idea if it is."
Okay, so this is, I'm guessing, as part of their re-engagement campaign. Well, they're requesting a fresh consent campaign. They are saying, "Okay, this new act is coming into force. You can either opt-in or opt-out, but if you want to stay opted in, then to say thank you, you can have a 10% discount code." There have been very interesting thoughts in the group. A number of people have been quite categorical that this is not allowed, because that's what they've heard from somebody, and other people who are thinking about the... I suppose, practicalities of it and thinking a bit on a higher level about what is GDPR designed to stop.
So what is the answer? Well, of course, we don't have a black and white exact example that reflects the lady's post that is an answer from the supervisory authorities that tell us exactly what the answer is, but there's something fairly close, which is actually good, so in the ... which version is it? Let me find it. This is the ... Excuse me. I've still got that cough. This is the, it's the ICO's consultation document on consent, okay? I don't believe that this has been — excuse me — republished since the version that I have, but what that says is ... Let me find. Gosh. I can't find the page now. All right. There we go. Okay.
The reason that people are thinking that this isn't allowed is, A because they've heard it from a networking meeting, but B, where it's come from is the fact that consent has to be freely given, and there has to be a real choice and control about that consent. Now, the Working Party guidance doesn't actually talk about incentivizing opt-ins, but the ICO guidance does, and what they say in the ICO guidance is, "The GDPR is also clear that people must be able to opt-out without being penalized."
Recital 42 says, "Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment." Okay. So this is where people are getting this idea that you can't incentivize consent. Now, to me, detriment means something a lot more than not getting a £10 money-off voucher. Maybe that's just me, and a lot of these things do come down to interpretation, but I'm not sure that's what the legislators had in mind when they were writing this particular provision.
Happily, the ICO go on to clarify it for us, to say, "It may still be possible to incentivize consent to some extent. There will usually be some benefit to consenting to process. For example, if joining the retailer's loyalty scheme comes with access to money-off vouchers, there is clearly some incentive to consent to market. The fact that this benefit is unavailable to those who don't sign up does not amount to a detriment for refusal." Okay? So what that's saying, and it's talking about a very similar thing. It's saying it's a retailer's loyalty scheme comes with access to money-off vouchers.
Here, the question in the group was ... she just says "opted in," actually, doesn't give clarity on what they're actually opting in for. A 10% discount code. The ICO guidance says, "The retailer's loyalty scheme comes with access to money-off vouchers." That's fine, basically, it's all that says. It does go on to say, "You must be careful not to cross the line and unfairly penalize those who refuse consent." Okay, but in my view, that is quite clear that you are indeed able to incentivize consent in that way by offering money-off vouchers, so I hope that clarifies the position.
I'm going to be covering this and a lot more on my webinar tomorrow, GDPR and Marketing. If you haven't registered for that yet, then please do. The link is on the Events tab. It's tomorrow, Thursday at ... Thursday, the ... what day are we on? Let me find my phone. My phone has disappeared. Where has my phone gone? I'm recording on it. That would be why. Okay. What the date today. Where's my calendar? I should know this, of course. Right, so the 19th, Thursday the 19th, the webinar on marketing, 12:30 to 2:00.
I'm going to be covering all ins and outs of marketing. I'm going to be giving you a good overview but then going into some really specific examples like, we'll talk all about how you get fresh consent, which I know is a question that I get asked a gazillion times. We'll talk about prospecting. We'll talk about Facebook advertising. We'll talk about collaborating. We'll talk about collecting business cards at events. We'll talk about freebies and follow up marketing emails. We'll talk about contact forms on websites. We'll talk about customers satisfaction surveys. We'll talk about leads from marketing companies. We'll talk about lead magnets that require sensitive data. We will talk about purchasing data lists. We'll talk about referral networking groups. Well, I hope we're going to have time to talk about all of that. I'm going to do my very best to cover all of that for you because I know that marketing is the main area of concern for so many of you.
I hope that little video clarifies the position of being able to incentivize opt-ins and let me know if you are planning on doing that for your own opt-ins. Next week I will share with you what I'm going to be doing for my re-engagement campaign and how I'll be incentivizing my opt-ins. Okay. All right. See you on the webinar tomorrow at 12:30. Bring along your pen and pad. I've already had some great questions submitted, which will be woven into the content, but obviously if you've got any more questions that occur to you while on the webinar, then ask them. I can't guarantee that we're going to get through it in an hour and a half, but if there is enough that I haven't covered, then I shall arrange a part two of the GDPR and marketing webinar.
I hope to see you on that. Spread the word. If you've got business pals who you think would benefit from hearing that webinar, then share the link. You're more than welcome to share that link outside of the group, and yeah, we'll have fun. We'll have some good fun talking about GDPR and marketing. Bye for now.
