GDPR and Whether You Need Consent from Existing Customers to Send Marketing /Newsletters Etc.

Transcript of the video

Now, as you'll know, if you've watched the overview video, and any of my other training, legitimate interest is a balancing test, okay? It's looking at your legitimate interest as a business against protecting the rights and freedoms of the data subjects. In my pack, there is a legitimate interest assessment form that you should fill out every time you want to rely on legitimate interest because it's not completely black and white. It's a little bit of a gray area, but if at the least, you have filled that in, and if somebody complains and the ICO comes to investigate, then you can point them to that assessment form and show your decision-making logic. You'll be in a much better position than if you'd just gone, "Oh yes, I know, we'll use legitimate interest. That sounds easy. I don't have to bother getting consent", okay? So do go through that exercise, but essentially, you can reasonably expect to receive information from you or marketing from you, then potentially, you can rely on legitimate interest.

Obviously, if you're sending a customer, an existing customer, information that is very relevant to them, it bearing in mind what they previously bought from you, then there is a good argument to say that they might reasonably expect to hear more from you. Particularly where, say, it's a follow-on product or service from what they've already bought, or if it's information about that product or service, then definitely, there would be the grounds for legitimate interest, okay?

Now, if they're not a customer, if they're a prospect and, just out of the blue, they start getting marketing emails from you, then obviously, you need to look at the grounds of legitimate interest a lot closer, okay? But for customers, in my view, if you're sending them something that is related to what they've previously bought from you, then there is a good argument for legitimate interest, but carry out the legitimate interest assessment form that's in the pack and keep that on record, okay?

Now, the other issue at play here is PECR, okay, which is another regulation, which is due to change in 2019 to bring it in line with GDPR, but what that says and what it's likely to continue to say is that for non-solicited marketing emails to individuals, which includes sole traders and partnerships, you need prior consent, okay, unless the soft opt-in applies. What the soft opt-in says is that if somebody is a customer and they're previously bought products or services from you, or they've initiated inquiries about those products or services, maybe they've asked you for a quote, or something like that, then you can rely on the soft opt-in rule, as long as the material that you're sending them is related to those products or services, and as long as at the time that they gave you their details, you explained their right to opt-out of any marketing emails. You've given them that right in every communication since then. So you've always had that opt-out at the bottom of your marketing emails, okay? That's what's known as the soft opt-in rule. That covers existing customers, okay?

In my view, if you are sending existing customers marketing materials about goods or products or services that they've already bought, then under GDPR, you do not need to get fresh consent from them because you're not relying on a lawful ground of processing. Instead, you're relying on a legitimate interest, but as I say, do, do the legitimate interest assessment form that can be found in the pack.

As far as PECR is concerned, you can rely on the soft opt-in rule, as long as you told them at the time that you collected their details that you would be sending them marketing information relevant to them, and you've given them the opportunity to opt-out when you've sent every marketing communication since then.

Okay. I hope that's clear. Please if you're a new member, I know it's hard. There's a lot of information in the group, but if you invest two hours in watching the overview training, going through the checklist, working out what's relevant to you, and then searching in the files section of this group, where Veronica's put together a list of all of my live streams, and watch the ones that are applicable to you, then you will be on a much better footing, okay?

This group, it's grown. Since I set it up five weeks ago, we're now at nearly 10,000 members. As you can imagine, that's getting a little bit difficult to keep an eye on, okay? So it would be enormously helpful for everybody, not just for me, but certainly for the members who have been in the group for a long time that see the same old questions coming up if you could just do that. Invest that little bit of time. It will help you with your immediate question, but it will also help you with your future questions, and make you just feel a lot calmer about GDPR. It's not something that is designed to get us, as small business owners. It's not here to stop us doing business. It's not here even to be overly burdensome. If you get the checklist, you'll see that if you follow a few simple steps in there, you'll be absolutely fine, okay?

Another thing to note about this group is we're incredibly friendly and supportive. If people have a genuine need, of course, people will try to help. What you need to be mindful of is that not everybody understands the true position, okay? So I try to keep an eye on the comments and if I see incorrect comments will delete them. But as I say, it's increasingly difficult to do that. So if you want to know that the information that you are relying on, and in fact, don't rely on any information because I'm not advising you as a lawyer, but if you want to know that it's me that's giving you the guidance, and it's at your risk to rely on that, then look at my videos, look at my comments, okay? I wouldn't' be necessarily relying on comments from other people in the group because very often, they get it wrong, okay?

I hope that video has helped some of you. As I say, a plea to new members, please do invest that time. It'll make it so worthwhile for you and for everybody else in the group. If you see new members joining and panicking and commenting, please do direct them to the pinned posts to the overview training, to the checklist, and to the live stream videos where they can go and get the guidance that they need.

Okay. Thanks, guys, for that. I'll see you soon.