Just PECR. ... Soft Opt-in: This can be used with existing customers but does not apply to new customers or contacts. Soft Opt-In There is an exception called the ‘soft opt-in’. The soft opt-in is not considered consent. If you have any queries about the GDPR, marketing or other data issues, then please contact the Data Protection team. But if you rely on the soft opt-in then as long as you are happy that you have complied with the requirement to allow your customer/client the option of opting out when you collected their contact details and they are given this option every time you send them a marketing message, then it appears that this will remain to be within the law – as far as we can tell. However, there are two that are likely to be used as a legal basis for direct marketing: consent and legitimate interests. This means that consent is not required if you are sending marketing message about similar products and services to your customers/clients or those you have negotiated with to provide products or services, as long as: This processing is not based on consent, but rather the legitimate interests processing condition and can only be relied up on by the organisation that collected the contact details, not third parties. Solutions Consent Management . It has to be a similar product or service. Download your free guide today. You need to have been in negotiations for those goods or services or the person is a customer of those goods and services. I had seen some comments in this group that suggest that the soft opt-in rule is going away. That's not the case. But the rules on email marketing are in PECR. Consequently, because consent is not legally required under the PECR for B2B marketing and marketing to consumers on the basis of a soft opt-in, legitimate interests is a possible lawful basis under the GDPR for these activities, subject to carrying out an LIA. 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. And getting in wrong can result in fines of up to €20 million or 4% turnover. It also does not apply to non-commercial promotions (eg charity fundraising or political campaigning). Cookies and other similar technologies Get Cyber secure! Consent will not be required to send customers/clients direct marketing using their email address etc in the context of a sale of a product or service. Soft Opt-in Exemption. The PECR, unlike the GDPR, is highly specific, relating to the privacy of electronic communications and communication networks as well as the security of those services and networks. Email/Text: There is an exemption within PECR, rather ambiguously known as the “soft opt-in”, whereby you can send emails/texts without Consent as long as the following conditions are met: – You have obtained the contact details in the course of a sale (or negotiations of a sale) of a product or service. Avoid the risk of non-compliance. There is an exception to the default position that consent is required, known as 'soft opt-in'. I hope that makes it clear. You will of course still require to process their data in line with the processing principles under the GDPR and provide them with information to ensure fair processing – see our blog on this issue. How to determine whether you are permitted to rely on the soft opt-in, or whether you must obtain consent; Key considerations when buying marketing lists; and; Best practice for using cookies and other tracking technologies. PECR does. The contract doesn't actually have to of been formed. Regulation 22 of PECR restricts you from contacting an individual via electronic messages without specific consent, except in relation to certain existing customers, for which you can rely on a ‘soft opt-in’. 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. As always, any questions, comment on the video below. There is a possible difference here as PECR soft opt-in can apply during negotiation for a sale. Entering into negotiations, however will not allow the provider to send marketing messages without consent. Reveal IT security weaknesses. We are talking about the world of “soft opt-in” and double opt-in here. Emails/text messages to individuals - obtained using ‘soft opt-in’ Conclusion Legitimate interests The General Data Protection Regulation (GDPR) states that there are six legal grounds for processing personal data. Now, what's a corporate subscriber? PECR contains an exemption to the consent requirement for email and texts, which is commonly and rather ambiguously referred to as the ‘soft opt-in’. And what PECR say is that you can email corporate subscribers without their consent. Now is the time to start working out what contact details you can and cannot use post-25 May 2018. For further information, see our guidance on direct marketing. It is a different regulation called PECR, or the Privacy and Electronic Communications Regulations, which talk about a number of things. + IMMEDIATE ACCESS TO 20 GDPR LEGAL DOCUMENT TEMPLATES. GET IT NOW! Easily Train you staff in GDPR. Direct marketers need to be able to show consent was knowingly and freely given. And you had to send it to them every subsequent time that you sent them a direct marketing communication. In addition, at the time that you collected their details, you had to advise them of their right to opt-out of marketing communications. So I hope that's clear. In a nutshell, consent under PECR must now be opt-in, not opt-out, or as sometimes referred to as: “soft” opt-in. So you have to be very careful about relying on the corporate subscriber rule. In light of this, I’m surprised to note the following words in the Information Commissioner’s Office’s guidance on PECR The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts Until the ePrivacy Regulation is enforceable – expected to be in 2020 (date to be confirmed) – The Privacy and Electronic Communications Regulations (PECR) will continue to be the prevailing law governing electronic communications and messaging, including email, and this includes the provision for soft opt-in for marketing to existing customers. PLUS Suzanne's Easy to Follow GDPR Video Guides for your business. These Regulations implement Articles 2, 4, 5(3), 6 to 13, 15 and 16 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (“the Directive”). It seems to have gone a little bit strange, but hopefully, you can hear me, and that's the most important thing. But today I'm going to talk to you about the soft opt-in. You’ll often see soft opt-in processes during online order and quotation processes, where the website has pre-ticked marketing sign-up boxes. Yes, there's a little bit of perspiration going on today. Someone who you're not emailing in a business capacity. In addition, you can only rely on consent obtained prior to 25 May 2018 if it is GDPR compliant. Free PECR Gap Analysis. The definition of consent is changing significantly under the GDPR and from 25 May 2018 it will be very difficult to obtain valid consent. The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts (eg from bought-in lists). If the individual didn’t say “yes”, it means “no”. You give them the opportunity to opt-out when you send them subsequent messages. See Table One for further information on these previous processess. The practice of soft opt-in is to default someone to opting in, whilst providing a clear statement of this and a means for them to opt-out, typically a pre-ticked box. The contents of the draft ePrivacy Regulation have caused controversy and it seems unlikely that the final version will be ready in time. ... unless the soft opt-in exemption applies. This may change but at the moment it appears that the soft opt-in may be reduced in scope. PECR – then – GDPR. The PECR has had, to date, 9 amendments. This means that consent is not required if you are sending marketing message about similar products and services to your customers/clients or those you have negotiated with to provide products or services, as long as: So I've seen the draft amendments to the PECR and that's not the case. Regardless how much individuals engage with your marketing communications, consent must be asked in explicit language. It also does not apply to non-commercial promotions (eg charity fundraising or political campaigning). because GDPR will set out the rules on consent, the rules on legitimate interests and, obviously, how you interact with processors and all its other rights and obligations. If you rely on consent, we think it is likely that you will have to refresh that consent to ensure that it is GDPR compliant, not least to ensure that you have an appropriate record in case the ICO come knocking. Soft Opt-in is spelled out in the ePrivacy Directive Article 13 and in PECR Section 22. From setting up your business and trading legally to GDPR. The term applies to existing customers, and is used by the ICO to outline the criteria that informs how you should evaluate the relationship you have with every existing contact within your database. You need their prior consent. The ICO, and PECR, understand that you have a reasonable right to contact customers. EU law is very proud of its high standard of consent, and the soft opt-in … Soft opt-in is a form of temporary consent given by individuals while collecting their email details. Assess the impact of your data protection 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. You now have 18 months to comply! © 2011-2019 All Rights Reserved, Suzanne Dibble. For example, the distinction between individual and corporate subscribers might be removed, meaning that you could only send unsolicited emails to corporate subscribers if the soft opt-in applies or they have consented, as is currently the case with individual subscribers under PECR. 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. It is a different regulation called PECR, or the Privacy and Electronic Communications Regulations, which talk about a number of things. The soft opt-in, it's actually nothing to do with GDPR. Opt- in or Soft opt-in to be marketed by Email (section 11 of DPL & Regulation 202) Opt-in to be 3marketed by SMS (section 11 of DPL & Regulation 20 ) Opt-in to be marketed by Fax (section 11 of the DPL & Regulation 184) Opt-in to be marketed by Automated Telemarketing (Regulation 175) 1 Regulation 21 PECR 2 Regulation 22 PECR 3 Regulation 22 PECR You can opt out any time. Online e-Learning Platform. And you have to be sending them something similar to that. It will replace PECRs in the UK with the aim of bringing regulation up to date with modern technology and in line with GDPR. 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. 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. There's also something that says that if you were in the course of negotiations for the sale, that will also apply. Deliverability Comment While the soft opt-in option may be permitted under PECR, in my deliverability role I see more complaints arising from this than every other email scenario combined. The draft ePrivacy Regulation was published in January 2017 with the intention that it would come into direct effect across the EU on 25 May 2018 as well. You give them the opportunity to opt-out when you receive their contact information; and. Soft opt-in during sales. Small Business Legals can be tough. The GDPR is coming! PECR allows for soft opt-in during the negotiation of a sale. The definition of consent under the ePrivacy Regulation will be the same as the definition under the GDPR. ... (PECR). What is double opt-in? PECR Audit . For further information, see our guidance on direct marketing. Which means that you don't need their explicit consent to send marketing communications to individuals. And typically that is the opt-out that you see at the bottom of the emails. Our company registration number is 7021047 – a Private Limited Company registered in England and Wales, Cut through all of the confusing, conflicting and incorrect advice on the internet and follow guidance from a top data protection law expert, GDPR COMPLIANCE PACK BONUSES! But with the replacement on its way, the ePrivacy Regulation, eyes are turning to what that is saying about Soft Opt-in. And individual subscriber is as the name suggests, an individual. Now, GDPR does not distinguish between individual and corporate subscribers. This is sometimes called a "soft opt-in." However we expect that the definition of consent under PECRs will change on 25 May 2018 via the new UK Data Protection Bill, due out next month. 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. Marketing illegally? For more info visit our GDPR updates page. GDPR Staff e-Training. 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. The definition of consent under the GDPR is: Any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed. GDPR Cookie Consent; CCPA Cookie Consent It could apply if you feel a person would be happy to receive marketing emails from you but they haven't specifically consented to this. I can help you with this, Niche Legal Solutions Limited, 3rd Floor, 207 Regent Street, London. 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. The detailed rule is in PECR’s Regulation 22 which says you cannot send ‘unsolicited emails’ for the purpose of ‘direct marketing’ to an ‘individual subscriber’ without their prior consent, unless the ‘soft opt-in’ exemption applies. Whereas ‘existing customer relationship’ appears to exclude prospects in negotiation for a sale. The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts (eg from bought-in lists). Suzanne Dibble here, data protection law expert coming to you raw and uncut, from a very hot and sweaty Thailand. 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. Fortunately it doesn’t look like much is changing. Cyber Secure. DPIA. Good afternoon ladies and gentlemen. However, the new ePR regulation will require that any email communication with these people will be limited to ‘the context of the sale of a product or service’. It is also not without irony that GDPR itself actually requires you to contact customers in certain circumstances, for … But marketers can send marketing emails or texts without consent in the situation known as soft-opt-in in the PECR. 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. 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. Soft opt-in consent, whilst valid for PECR purposes, will not meet these requirements. Defaulting someone to opt-in is allowed under specific conditions. Charities and political parties, for example, will fall under the default position requiring consent. And this is where the confusion comes from. 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. However if you are marketing via email, SMS or any other digital format then it is likely that consent will be your only option. It applies where: 1. If you have any queries about the GDPR, marketing or other data issues, then please contact the, Professional Discipline and Clinical Defence, 10 significant changes to data protection law under GDPR - Insider 9 July 2017, Do Data Protection by Design – or Face a Fine - Boomerang Funding 4 June 2017, Top Ten GDPR Facts Businesses Need to Think About Now. 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. 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. For this, contact details should have been obtained at the time of a product or service sale, transfer of emails or texts for the sale of similar products or services. You can opt out any time. Now, I've talked about it a number of times on different videos but never specifically by itself. Our advice is that if you can rely on another processing condition, then do - consent should be your last option and is generally not your only option. Alongside the Data Protection Act 1998 in the UK, the Privacy and Electronic Communications Regulations 2003 (PECRs), have defined what is acceptable in relation to direct marketing. 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