How to use the ‘charitable purpose soft opt-in’ When will charities be able to use it for direct marketing? The Data Use and Access Act (DUAA) 2025 amends the Privacy and Electronic Communications Regulations (PECR), allowing charities to send direct marketing about their charitable purpose(s) without consent. But only IF they can meet specific criteria. The ICO has launched a consultation on its proposed approach to this change, which sets out when charities will and won’t be to use the so called ‘charitable purpose soft opt-in’. This regulatory approach could be subject to changes after the consultation closes on 17 November. To make a clear distinction the ICO refers to the existing exemption to consent as the ‘commercial soft opt-in’. This change is expected to take effect from January 2026 and until it has legally taken effect it must NOT be used by charities. What’s the ‘commercial soft opt-in’? The existing exemption to consent can be relied upon to send electronic marketing (e.g. emails and texts) only if ALL of the following conditions are met: ✔ A person’s contact details are collected during the course of a sale, or negotiations for a sale, of a product or service; ✔ An opportunity to refuse or opt-out of the marketing is given at the point of collection, and in every subsequent communication; ✔ You only send marketing about your own similar products and services (not those of a third party). The phrase ‘course of a sale, or negotiations for a sale’ has largely excluded charities from relying on this exemption, with limited use for example if you have an online charity shop. Quick note: the rules under PECR on consent and the soft opt-in exemption apply to electronic marketing to ‘individual subscribers’ i.e. people’s personal email addresses. They don’t apply to emails to business contacts. See UK email marketing rules and ICO guidance on marketing to business contacts What’s the new ‘charitable purposes soft opt-in’? The ICO’s draft guidance states organisations will be able to use the charitable purpose soft opt-in instead of consent, if the following requirements are fully met: ✔ You’re a charity – as defined under the law in England, Scotland or Northern Ireland. ✔ The sole purpose of your direct marketing is to further one or more of your charitable purposes. ✔ You obtained the contact details directly from the recipient. The ICO stresses ‘there is no such thing as a third-party marketing list that is ‘soft opt-in compliant’.’ ✔ You obtained the details in the course of the recipient: – expressing an interest in one or more of your charitable purposes For example; signing up to your charity’s website or newsletter, requesting information about your charitable purposes, events or services you offer. or       – offering or providing support to further one or more of your charitable purposes. For example; the recipient donates to, or volunteers to help your charity. ✔ You gave an opportunity to refuse or opt out when you collected the details. ✔ You give an opportunity to refuse or opt out in every subsequent communication. What is a charitable purpose? The Charities Act 2011, and equivalent legislation in Scotland and Northern Ireland provides a non-exhaustive list of examples which can be considered charitable purposes, if done for the public benefit. The ICO says furthering your charitable purpose can include activities such as: ✔ Requesting donations, including financial contributions and donations of clothes, food or other items ✔ Requesting volunteers help ✔ Providing information about your charity’s activities, including the work you do and the services you provide. Do charities have to make changes? The short answer is NO. This is a choice. Stick with consent where you currently use it for direct marketing, or switch to the charitable purpose soft opt-in if you wish to, and if you can meet it’s specific requirements. 5 key points to bear in mind If you’re looking to make the switch from consent, we’d advise reading the ICO draft guidance in full. However, we’ve picked out some pertinent matters to consider. 1. It can’t be used retrospectively The ICO stresses you can’t use this change to send electronic marketing (e.g. email and text) to people whose details you’ve already collected before it takes effect. The Regulator says this is because, if you’ve been relying on consent you won’t have offered people an opportunity to opt-out. Furthermore, you’re unlikely to meet wider data protection obligations such as satisfying the legitimate interests balancing test and the transparency principle. 2. No promotion of third parties The charitable purposes soft opt-in can only be used to further your own charitable purposes. It must not be used to send marketing about other organisations, including other charities. 3. The charitable purposes and commercial soft opt-ins are NOT interchangeable This is where the draft guidance gets more nuanced. The ICO says you can’t send electronic marketing about your charity’s commercial activities using the charitable purposes soft opt-in. Conversely, you  can’t send electronic marketing about your charitable purposes using the commercial soft opt-in. This means if you rely on either soft opt-in you can’t mix up the content of an email or text marketing message. It must either relate to your charitable purposes or be about commercial activities, not both. The ICO gives an example of charities who carry out commercial activities like selling second-hand items. The regulator says; “someone buying these items would not be considered as offering or provide support to further your charitable purpose because there may be other reasons for them to buy the items.” In this situation the ICO says you’d need to ask people for their consent to send electronic marketing about your charitable purposes, or look to rely on the commercial soft opt-in to send electronic mail solely about your commercial activities. In practice, the ICO’s guidance means if you intend to use both types of soft opt-ins, your CRM platform will need to be able to support this distinction and communications teams will need to clearly understand what can and can’t be sent to different audiences. 4. Meeting all the soft opt-in criteria might not be enough The ICO says there may be some situations even when you meet the criteria above where it may still not be appropriate to send electronic mail marketing. An example is given of how it could cause harm to send direct marketing to someone who’s accessed a charity’s crisis intervention service. 5. Don’t forget you still need a lawful basis When using either the charitable purposes or commercial soft opt-in, you will still need a lawful basis under UK GDPR when processing people’s personal information. If not consent, the only other appropriate option for direct marketing is likely to be legitimate interests. When relying on legitimate interests you need to balance your interests and make sure these don’t negatively impact on the recipient’s rights and freedoms. To comply with the law the regulator says you should conduct a legitimate interests assessment. This will help you to ask the right questions and objectively weigh up people’s reasonable expectations and any impact your activities could have on them. 6. Privacy notices will need updating You’ll need to make sure relevant privacy notices are updated to clearly call out where direct marketing is carried out based on legitimate interests. Pros and cons of the charitable soft opt-in More broadly than meeting legal requirements and regulatory expectations, in my experience there are some other matters to bear in mind before making the switch, there are some positives and some negatives. Here are a few… Bigger audience of supporters to market to? Collecting someone’s consent to send them marketing, obtaining a clear unambiguous tick (or check in a box) is undoubtedly a clear indication they would like to hear from you in future. However, asking people to take a positive action is recognised as negatively impacting on the volume of people you can communicate with. Hence why many commercial organisations choose to use the commercial soft opt-in. Opt-out / opt-in confusion? Relying on the soft opt-in means you can provide people with the ability to opt-out at the time they provide their contact details. This immediately raises a consideration: have people become expectant of being asked opt-in? If they have, there could be adverse consequences of switching to an opt-out. For example, if you switch: ■ Will people accidentally tick the box, thinking they are opting in, but in effect be opting out? ■ Conversely, will people who don’t want to receive marketing, fail to tick the opt-out box (assuming it’s an opt-in) and inadvertently be saying ‘yes that’s okay’? I’d advise carefully crafting the wording, to try and avoid confusion. Clearer opt-out for ALL channels? At the moment, organisations are presented with a dilemma if they collect consent for email (and/or text) marketing, but rely on legitimate interests for post and telemarking. A statement which mixes opt-ins and opt-outs can create a muddle for people. We’ve noticed some charities have got round this by including a statement explaining they will communicate by post and telephone, with clear contact details for how to change preferences (i.e. if they want to object). Being able to provide an opt-out for ALL marketing channels, could prove simpler and clearer. But remember you wouldn’t be able to rely on the charitable purpose soft opt-in to send communications about commercial activities. Can your CRM system handle a switch from consent? Switching opt-ins to opt-out could present a technical challenge. You’ll need to be able to clearly distinguish on your database between: ■ those who previously provided their consent ■ those who were asked for consent but declined – or have subsequently opted-out, and ■ moving forward, those who were given a soft opt-in statement and have simply not opted out. ■ where relevant the distinction between the commercial soft opt-in and the charitable purposes soft opt-in When you gather new data via the soft opt-in, you’ll need to make sure it’s mapped correctly to your CRM. Some CRM systems may not have more than two statuses for each marketing channel, i.e. they may have been built with just ‘consent’ or ‘no consent’ and therefore may have no way to record a legitimate interest for direct marketing. In summary, the charitable purpose soft opt-in provides a levelling of the playing field between commercial businesses and charities. It definitely presents an opportunity some will want to take advantage of, but it will take some careful planning.

UK email marketing rules Is email marketing putting your business as risk? Hardly a month goes by without an announcement from the UK’s Information Commissioner’s Office of another business being fined for falling foul of the email & SMS marketing rules. It continues to surprise me some marketing and communications teams haven’t heard of the Privacy and Electronic Communications Regulations. They’ve been around since 2003 (far longer than GDPR) so businesses really have no excuse. Of course, there will always be some who want to try and get away with it. Under PECR there are specific rules for direct marketing by telephone, email and SMS, plus rules for cookies and similar technologies. Here I’m going to focus on email marketing. The same rules apply to SMS and to other ‘electronically stored’ marketing messages, including picture or video messages, voicemail, in-app messages and personal messaging on social media. Consent for business-to-consumer (B2C) marketing emails Unless using the exemption below, you must collect consent before you send email marketing to what are termed individual subscribers. This definition covers people who personally subscribe to their email service provider. For example people who give you their personal gmail, hotmail or btinternet email address. Soft opt-in exemption for business-to-consumer (B2C) marketing emails There’s an exemption to consent for B2C email marketing, commonly known as the soft opt-in. This can only be used if the following criteria are met: The individual’s contact details are collected during the course of a sale (or negotiations of a sale) of a product or service An opportunity to refuse or opt-out of the marketing is given at the point of collection and in every subsequent communication AND You only send marketing about your own similar products and services. See PECR Regulation 22 and the ICO Guidance on Electronic Mail This strict criteria means the ability for charities to rely this exemption is very limited. However, the UK Data (Use & Access) Act 2025 amends PECR and introduces the ‘charitable purpose soft-opt in‘, which we’ve written more about here. Marketing emails to business contacts (B2B) The rules on consent and the soft opt-in exemption do not apply to what are termed corporate subscribers. A corporate subscriber is described by the ICO as any corporate body (an entity with a separate legal status) with its own phone number or internet connection. For example, my work email address has the domain <name>@dpnetwork.org.uk. DPN Associates pays for this service, not me as an individual. Businesses don’t legally need consent to contact me at my DPN business email address. To quote the ICO on this: “The PECR rule on direct marketing by electronic mail does not apply to corporate subscribers. For example, this means you can send B2B direct marketing emails or texts to any corporate body. You do not need their consent under PECR to send such messages.” A couple of key points to bear in mind: A named business contact will still fall under the definition of personal data. Therefore B2B marketing to named individuals must comply with UK GDPR. Sole traders and some partnerships technically fall under the definition of individual subscribers, where consent or the soft-opt-in exemption would be required. The right to object Everyone has the absolute right to object to direct marketing. This applies to both B2C and B2B marketing communications. Marketing emails should always have an unsubscribe link or clear instructions how to opt-out. Businesses also need to make sure everyone who has opted-out of emails is not included again. Global email marketing If you’re a UK-based company sending marketing emails outside the UK, you’ll need to check the rules in the destination country. The rules in the recipients’ country will apply. The rules in Germany, for example, are stricter than they are in the UK. Rules differ across Europe and the rest of the world for B2C and B2B email marketing. What about UK GDPR? Once you’ve got the PECR rules straight, you need to also consider what’s necessary to comply with UK GDPR. For example you should be transparent about your activities, fulfil the right to be informed, the right to object to direct marketing and so on. You also need to identify a lawful basis for your marketing activities and meet the requirements of this lawful basis. Consent If you’re relying on consent under PECR, the ICO tells us consent must meet UK GDPR’s standards. In other words, consent should be ‘freely given, specific, informed and unambiguous’ and must be given by the individual with a ‘clear affirmative action’. One of the big changes under GDPR was the consent requirement became far stricter. It’s worth double-checking you’re meeting them. Consent – are you getting it right? Legitimate Interests If you don’t have to rely on consent, your other option is legitimate interests. There is a handy table in the ICO’s legitimate interests’ guidance under Can we use legitimate interests for our marketing activities?, which sets out when consent is required and when legitimate interests may be appropriate. It shouldn’t be a throwaway decision to rely on legitimate interests. GDPR requires you to carefully balance the legitimate interests of your business with the ‘rights and freedoms’ of the people you’re going to market to. You need to take care to make sure the rights of those whose data you’re collecting are not undermined by your business legitimate interests. We’d advise completing a Legitimate Interests Assessment (known as a balancing test) and keeping a record of this. Other areas to be mindful of Disguising a marketing message as a service message. Businesses will often need to send service messages by email for administrative or customer services purposes. These can be sent to everyone provided they only contain essential factual information for your customer. Such as confirming an order, confirming a delivery date/time, and so on. However, if there’s any promotional content, for example an upsell or cross-sell message, they will be deemed to be direct marketing messages and then PECR will apply. See Marketing and Service Messages Asking for permission to send marketing by email is deemed to be a marketing message in itself. So you can’t email people (‘individual subscribers’) to ask them to consent to marketing. ‘Hosted’ emails; this is where you use another organisation to promote your products or services to their database. This could cause a problem if you are judged to be the ‘instigator’ of these emails, especially in a B2C context, and valid ‘named’ consent wasn’t collected, i.e. your business wasn’t named when the other organisation collected consent. The above are all areas the ICO has taken action in the past. On the face of it, email marketing rules might seem a minefield of terms; consent, soft opt-ins, opt-outs, legitimate interests, sole traders and corporate subscribers. But once the rules are embedded into marketing teams’ heads and ways of working, it can make life easier and reduce the chances of unknowingly violating them and risking a fine.

Right to object to advertising Landmark privacy case shines light on ‘direct marketing’ Meta has agreed to stop targeting a UK human rights campaigner with personalised adverts in a settlement which could set a precedent for millions of social media users, and raise alarm bells for other businesses which offer targeted advertising solutions. Tanya O’Carroll launched a lawsuit claiming Meta was breaching UK GDPR by not upholding her right to object to being targeted with online adverts. She argued ads served to her on Facebook met the definition of direct marketing, and under data protection law she has an absolute right to object to direct marketing, and associated profiling. A stance which was supported by the Information Commissioner’s Office (ICO) but disputed by Meta, which claimed its ‘personalised ads’ did not constitute direct marketing. The definition of direct marketing in the Data Protection Act 2018 is: the communication (by whatever means) of advertising or marketing material which is directed to particular individuals. A key consideration is whether advertising or marketing is ‘directed’ to individuals, rather than indiscriminate advertising which is not individually targeted. The case had been due to be heard in the High Court, but the settlement ends the legal action. Ms O’Carroll said; “In agreeing to conclude the case, Meta Platforms, Inc. has agreed that it will not display any direct marketing ads to me on Facebook, will not process my data for direct marketing purposes and will not undertake such processing (including any profiling) to the extent it is related to such direct marketing”. In reaching a settlement Ms Carroll accepts this is not determined in law, as Meta has not accepted liability. However, she believes the support of the Information Commissioner’s Office (ICO) means “the writing is on the wall for Meta and its advertising-based business model.” The ICO said; “Organisations must respect people’s choices about how their data is used. This means giving users a clear way to opt out of their data being used in this way.” Meta said it “fundamentally” disagreed with O’Carroll’s claims and took its obligations under the UK GDPR seriously. The fallout from this is Meta may now introduce a subscription service for UK users. Responding to the settlement Meta said: “Facebook and Instagram cost a significant amount of money to build and maintain, and these services are free for British consumers because of personalised advertising. Like many internet services, we are exploring the option of offering people based in the UK a subscription and will share further information in due course”. An ad free ‘paid for’ service is already offered in the EU after a European Court of Justice ruling in 2023. Meta may now shift to what is known as a ‘consent or pay’ model, whereby people either consent to being tracked for advertising purposes or pay to access an ad-free service. We’ve seen a number of UK newspapers adopt this approach in recent months, which I’ve written about here. It’s controversial, and if Meta takes this step I anticipate more legal challenges to come.

Big change as marketing ‘soft opt-in’ set to be extended to charities In a hugely significant move the Government has adopted an amendment to the Data (Use and Access) Bill (DUA), which paves the way for charities to be able to benefit from the ‘soft opt in’ exemption to consent for email and text marketing. This marks a clear move to level the playing field between charities and commercial businesses. In December nineteen major UK charities joined the Data & Marketing Association (DMA) in urging the Government to make this change. The DMA estimates extending the soft opt-in to charities will increase annual donations in the UK by £290 million. What is the soft opt-in? There’s a common misconception consent is always needed for email marketing to ‘individual subscribers’ (i.e. B2C – business to consumer marketing). There’s always been an exemption available to commercial businesses, commonly referred to as the ‘soft opt-in’. Under the Privacy and Electronic Communications Regulations (PECR) this can be relied upon for marketing emails and texts if ALL of the following conditions are met: ■ A person’s contact details are collected during the course of a sale, or negotiations for a sale, of a product or service; ■ An opportunity to refuse or opt-out of the marketing is given at the point of collection, and in every subsequent communication; ■ You only send marketing about your own similar products and services (not those of a third party) This strict criteria, in particular the first point, has meant charities have been very restricted and have only technically been able to use this exemption in a commercial context. For example, when someone purchased a product from an online charity shop. But charities have not been permitted to use supporter data gathered via the soft opt-in for fundraising purposes. However, the DUA Bill has now been amended to include a section on ‘Use of electronic mail for direct marketing by charities’. This states: A charity may send or instigate the sending of electronic mail for the purposes of direct marketing where— (a) the sole purpose of the direct marketing is to further one or more of the charity’s charitable purposes; (b) the charity obtained the contact details of the recipient of the electronic mail in the course of the recipient— (i) expressing an interest in one or more of the purposes that were the charity’s charitable purposes at that time; or (ii) offering or providing support to further one or more of those purposes; and (c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of their contact details for the purposes of direct marketing by the charity, at the time that the details were initially collected, and, where the recipient did not initially refuse the use of the details, at the time of each subsequent communication. What do charities need to consider? The Bill is still progressing through Parliament, so it’s not law yet. But once passed it will give charities a choice; stick with consent or start collecting new data using the soft opt-in. Of course, the pros and cons, will need to be weighed up. This will raise some important questions, including (but not limited to): ■ Will your CRM system be able to store multiple permission statuses for legacy data alongside new data gathered under the soft opt-in? ■ Will supporters find it confusing if you suddenly switch? ■ Will people tick a box, thinking they’re opting in, when actually they’ll be opting out? We’ve written more about this here: The marketing soft opt-in – pros and cons It has always felt unbalanced that the commercial sector has been able to benefit from this exemption to consent, but charities have not been able to. Here are DPN we’re delighted the lobbying of the DMA and Charities has paid off.

Cookie reprimand and more ICO investigations How to get to grips with your cookies and similar technologies Following warnings issued to companies operating some of the UK’s most popular websites in relation to their use of advertising cookies, the ICO has issued a reprimand to a leading betting website. It’s also announced an investigation into a company which has failed to take action to meet cookie compliance requirements. Bonne Terre Ltd, training as Sky Betting and Gaming, received a reprimand for ‘unlawfully processing people’s data through advertising cookies without their consent’. Third-party tracking technologies including cookies were dropped by the SkyBet website onto use devices, which collected personal data (e.g. device id and unique identifiers). While the site had a cookie notification (pop-up) and a consent management platform (CMP), the ICO investigation found certain cookies were dropped onto user devices before visitors interacted with the CMP. This meant visitors’ personal information was being processed and made available to AdTech vendors without the visitors’ knowledge or prior consent. In my experience this is often an area organisations often get wrong; cookies and other trackers being deployed onto user devices immediately, regardless of the CMP. The ICO also looked into whether Sky Betting and Gaming were deliberately misusing people’s personal information to target vulnerable gamblers, but found no evidence of deliberate misuse. As a result of the ICO investigation, Sky Betting and Gaming made changes in March 2023 to make sure people could reject all advertising cookies before their personal information was shared down the AdTech supply chain. Along with this reprimand the ICO has announced it will be investigating a gossip website; Tattle Life. Despite receiving an ICO warning, Tattle Life is said to have failed to engage. What is the ICO’s key concern The ICO is focusing on meeting the requirement to give users a fair choice over whether they are tracked for advertising purposes. Along with not dropping non-essential cookies on a user’s device automatically regardless of whether they have given their consent, the ICO stresses organisations must make it as easy for users to ‘reject all’ as it is to ‘accept all’.  To be clear, websites can still display adverts when users reject tracking, just not ones which are tailored to the person’s browsing habits. Our 5 steps for compliant cookies So, how can we make sure we’re following the rules when we deploy cookies and other similar technologies? Here are some straight-forward steps to take: 1. Audit: Do a cookie audit. If you don’t know what cookies your website is using you can’t even start to be compliant. Run a diagnostic scan to discover exactly what cookies and similar technologies are currently deployed on your website(s). Establish what they are being used for, which are provided by third party providers and which involve the sharing of data with the third party (for example Google, Meta, etc). 2. Spring clean: Get rid of the cookies you no longer need. This might sound obvious, but you’d be surprised how often we find long-forgotten cookies lurking on websites, serving no purpose yet still needlessly sharing data with third parties! You might need to check with your colleagues which are still used. 3. Categorise: Categorise your cookies – what are they used for? Strictly necessary (essential) cookies – these are vital for the website to operate. For example, a cookie which helps keep the website secure, or a cookie which allows items to be added to a cart in an online store. Analytics/Statistics/Performance cookies – for example, cookies which allow you to monitor and improve the site performance. Functional cookies – cookies which enable a site to remember user preferences and settings, to enhance their experience on your website. Advertising/Targeting cookies – allowing visitors to be followed from one website to another so tailored advertising can be displayed, or to target the most relevant advertising on your own website. 4. Collect consent: The law tells us you need to collect consent for all cookies and similar technologies which are not ‘strictly necessary’ before cookies are dropped onto the users device. To achieve this, you may wish to select a specialist Consent Management Platform to handle notifications and consents for you, as a website ‘plug in’. There are many CMPs on the market, some of which are free. Beware that not all of them meet the UK/EU cookie requirements, so care is required when selecting the right one. If you use sub-domains on your website, deploy a high number of cookies or you want to exercise some creativity with how it looks, your likely to need a paid solution. 5. Notify website users: Provide a clear notification about the cookies and similar technologies you deploy. This should include: the cookies you intend to use; the purposes they will be used for any third parties who may also process information stored in or accessed from the user’s device; and the duration of any cookies you wish to set. There are two approaches to this. You can let the CMP handle both the notification (pop-up) and the provision of more detailed information about cookies, or you can use the CMP for the pop-up and provide a separate more detailed cookie notice. What are cookies and similar technologies? Cookies are small pieces of information, which are used when users visit websites. The user’s software (for example, their web browser) can store cookies and send them back to the website the next time they visits. The cookie rules also apply to any other technologies which stores or accesses information on a user’s device. For example, similar technologies could include, web beacons, scripts, tracking pixels and plugins. What the law says Contrary to what we often read in the papers, GDPR does not give us the rules for cookies and similar technologies. In the UK the rules are set out in the Privacy and Electronic Communications Regulations (PECR) which are derived from the EU ePrivacy Directive. The specific requirements vary by country, so think about which countries your site users visit from. Many EU countries have their own rules, all based on the same EU Directive but in the real world they have their own nuances. In simple terms, you can’t ‘drop’ a file on a user’s device or gain access to information stored on their device unless: a) You have provided clear and comprehensive information about your purposes for doing this, and b) You have collected the consent of the user. There is an exemption for strictly necessary cookies only. The cookie rules apply regardless of whether you’re processing personal data or not, i.e. these rule also apply to the automated collection of anonymised data. Some points worth noting from ICO guidance Consent needs to meet the requirements under GDPR for it to be a specific, informed, indication of someone’s wishes given by a clear affirmative action. You must inform users about what cookies you use and what they do before they give their consent. Where third-party cookies are used, you must clearly and specifically name who these third parties are and what they will do with the information collected. Users must be given control over non-essential cookies, and should be able to continue to use your website if they don’t give consent. It’s worth noting the ICO has determined analytics cookies are NOT essential and require consent. However, this is not always the case in other European countries. For example, the French regulator CNIL does not mandate the collection of consent for analytics cookies. They consider these cookies can be used under Legitimate Interests, which means they still require websites to notify users and give them the opportunity to object (opt-out). The future and alternative solutions for cookies In both the UK and in the European Union there’s a concerted desire to simplify the rules and remove the necessity for everyone to be faced with a barrage of cookie pop-ups on every website they visit. As yet however, a suitable solution has not been agreed. Instead of using third-party cookies to help target advertising, there are a growing number of contextual advertising solutions, which are less intrusive, and a growing interest in more privacy friend Edge Computing Solutions. However, there’s a sense these alternatives are not yet fully tried and tested. So we’ve seen a move by some organisations (particularly publishers) to a consent or pay model.

Solving the GDPR puzzle Winston Churchill famously described Russian foreign policy as, ‘a riddle wrapped in a mystery inside an enigma.’ I’m sure those entrusted with data protection for their organisation may harbour similar thoughts about GDPR! Especially small-to-medium sized businesses and start-ups. As a piece of legislation, UK GDPR has lots of moving parts. As a consultant dedicated to helping organisations understand data protection, here’s my round up of things we at DPN find most commonly misconstrued. UK GDPR & Data Protection Act 2018 The UK GDPR and the Data Protection Act 2018 are not the same thing. UK GDPR was implemented in 2020 and largely mirrors its EU namesake. Post-Brexit, the UK flavour of GDPR was created to make it fit for purpose in a UK-specific context. For example, removing all the bits which referenced ‘member state law’. The Data Protection Act 2018 supplements UK GDPR. For example, it provides more detailed provisions in relation to special category data, child consent, the public interest lawful basis and individual privacy rights exemptions. The DPA 2018 also includes distinct provisions for processing by law enforcement and intelligence services. The Privacy and Electronic Communications Regulations (PECR) It’s PECR not UK GDPR which sets out the rules for direct marketing by electronic means, and for cookies and similar technologies. PECR has been around since 2003, and is derived from the ePrivacy EU Directive 2002. In 2011 there was a significant update to this piece of legislation with the so called ‘cookie law’. UK GDPR and PECR sit alongside each other. Organisations need to comply with both when personal data is collected and used for electronic marketing purposes, or collected and used via the deployment of cookies and similar technologies. UK GDPR, marketing & cookies There’s further interplay, for example, when consent is required under PECR, the consent collected needs to meet the UK GDPR standard for valid consent. This means, to give one example, the required consent for non-essential cookies must be ‘freely given, specific, informed and unambiguous’ and must be given by a ‘clear affirmative action by the data subject’. Getting consent right Controller and processor UK GDPR tells us a controller means ‘the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data’. For example, a sole trader, a charity, a limited company, a PLC or a local authority can be a controller. An individual within an organisation such as a CEO or Data Protection Officer (more on DPOs in a bit) is not a controller – a point some companies get wrong in their privacy notice and internal data protection policies. A controller decides how personal data is collected and used, and the organisation’s senior management is accountable. Furthermore the controller decides which service providers (aka ‘suppliers’ / ‘vendors’) to use. Which brings me onto…. A processor – which means ‘a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller’. Routinely processors will be companies which provide a service, and in providing this service handle their clients’ data. The key is the processor won’t use this client data for their own business purposes. To give some common examples of processors – outsourced payroll provider, external cloud services, marketing platforms, communications providers, website hosts, IT support services, software and application providers, and so much more. Some organisations which primarily act as a processor (service provider) may also act as a controller for certain activities. For example, to handle their own employee’s personal data. Controller or Processor – what are we? Controller, processor and ‘sub processor’ contracts A key change ushered in by GDPR was the concept of processor liability flowing right down the data supply chain. The law decrees there must be a contractual agreement between a controller and a processor, and gives very specific requirements for what this should cover. These are often found in a Data Processing Agreement (DPA), which may be an appendix or addendum to an existing or new contract. The law aims to make sure individuals’ rights are protected at all times as data flows down and back up the supply chain. As well as a contract between a controller and processor, the processor should have similar contractual terms flowing down to other processors they engage to deliver their services – commonly known as sub-processors. For example, the obligation to keep the controller’s personal data secure at all times. A point which can often get overlooked. Supplier contracts International data transfers include granting ‘access to’ personal data (aka ‘restricted transfers’ or ‘cross border transfers’) An international data transfer refers to the act of sending or transferring personal data from one country to another. Crucially this includes when an organisation makes personal data available or accessible to another entity (‘third party’) located in another country. In other words, the personal data can be accessed from overseas. To give a couple of examples; ⚑  your UK-based organisation engages a website hosting service based in the United States, which also provides support services. Employees of this service provider can access your customer data on the back end of your website. ⚑ Your UK-based organisation provides a payroll service to clients, to provide this service you use a sub-contractor based in India. The sub-contractor can view your clients’ employee payment records. In both of the above situations an international data transfer is taking place, and the law tells us specific safeguards are necessary. These rules exist because in the above two cases, customers and employees risk losing control of their personal data when it is ‘transferred’ outside the UK. For more detail see our International Data Transfers Guide and the ICO International Data Transfer Guidance Consent should not be your default lawful basis (aka ‘legal grounds’) Under UK GDPR there are six lawful bases for processing personal data. No single lawful basis is ’better’ or more important than the other and you must determine your lawful basis for each processing activity. Pick whichever one of the six is most appropriate to the activity. Sometimes consent will be the most appropriate basis to rely on, but certainly not always and consent should only be used when you can give people a genuine choice. Quick guide to lawful bases A privacy notice is simply a notification, not something people have to agree to (aka ‘privacy policy’) People have a fundamental right to be informed and one of the main ways organisations can meet this is by publishing a privacy notice. All businesses need an external facing privacy notice if they’re collecting and handling people’s personal information. And despite a common misconception, this doesn’t just relate to data gathered via a website. A privacy notice is a notification about ALL the different ways in which you’ll handle people’s personal details (your processing of ‘personal data’). It’s a method of providing necessary and legally mandated information. Although often still referred to as a ‘privacy policy’ it isn’t really policy (it’s a notification only) and isn’t something people should have to confirm they agree to. Privacy Notices Quick Guide & ICO Right to be Informed Guidance  Not every organisation must have a Data Protection Officer Many small organisations, and many medium-sized business don’t fall under the mandatory requirement to appoint a DPO. It’s only mandatory if your activities meet certain criteria; ✓ you’re a public authority or body (except for courts acting in their judicial capacity); or ✓ your core activities require large-scale, regular and systematic monitoring of individuals (for example, online behaviour tracking); or ✓ your core activities consist of large-scale processing of special categories of data or data relating to criminal convictions and offences. It can sometimes be difficult to assess whether your organisation falls under the mandatory requirement or not. And of course it’s perfectly acceptable to voluntarily appoint one – a good DPO can be a huge benefit. But if you don’t appoint a DPO you’ll still need someone (or a team) who have responsibility for data protection. It is worth bearing in mind the role of a Data Protection Officer is clearly defined in law. UK GDPR sets out the position of a DPO, specific tasks they’re responsible for, and how the organisation has a duty to support the DPO to fulfil their responsibilities. DPO Myth Buster Not all Personal Data Breaches need to be reported You’ve accidentally sent an email to the wrong person. This included limited personal information about someone else. You’ve apologised. The person you accidentally sent it to is a trusted person and has confirmed it’s been deleted. It’s unlikely this type of minor breach needs to be reported to the ICO. When a personal data breach has occurred (or is suspected), it’s important to quickly establish the likelihood and severity of risk and potential harms to those affected. You only need to report a breach to ICO if you assess the breach represents a risk to them. It can prove invaluable to have a clear methodology for assessing the risk posed. Data Breach Guide The right of access (aka DSAR or SAR) is not a right to documentation People have the right to submit a request to a controller asking for a copy of their personal data – a Data Subject Access Request. They can ask for ALL the personal data you hold about them. But this doesn’t mean the organisation is obliged to provide complete documents just because the individual’s name is referenced at some point. The same applies to emails. Requestees are not entitled to receive the full content of every email their name or email address appears in (unless all of the email content is personal data relating to them). DSAR Guide Sensitive vs special category data Certain types of personal data require higher levels of protection. Under the previous DPA 1998 the term ‘sensitive data’ was used, but under GDPR the revised term for this is ‘special categories of personal data’ commonly referred to as Special Category Data. This includes (but isn’t limited to) racial or ethnic origin, biometrics, political opinions, sexual orientation and data concerning health or sex life. This doesn’t mean other types of data aren’t ‘sensitive’, and shouldn’t be handled securely – such as bank details, national insurance numbers, date of birth and so on. It can be helpful to remember the root of special category data lies in human rights and data protection principles which emerged in Europe after World War Two – a war in which individuals were persecuted for their ethnic background, religious beliefs or indeed sexual orientation. Understanding and handling special category data I’m going to finish off with another, but very different, quote. As Douglas Adams wrote in The Hitchhiker’s Guide to the Galaxy, ‘DON’T PANIC!’ There’s plenty of help available (this article, for starters 😉 ) and the ICO has published plenty of guidance, including a dedicated SME Hub.

Yet more CC email data breaches Despite a stark warning from the Information Commissioner’s Office last year that a failure to correctly use the BCC field (Blind Carbon Copy) is one of the most common cause of breaches – the mistakes keep happening. The ICO has recently fined and issued a reprimand to the Central YMCA for sending an email to individuals participating in a programme for people living with HIV. The CC field was used, thereby revealing the email addresses to all recipients. 166 recipients could be identified or potentially identified from this, and it could be inferred they were likely to be living with HIV. Then we hear the Conservative party has reported a breach to the ICO, after hundreds of email addresses were visible to all recipients in an email communication promoting the party’s annual conference. Again a mistake in using CC rather than BCC. The latter would have kept email addresses private. And a mistake which has the potential to reveal people’s political affiliations. Last year in response to the number of breaches of this nature, the ICO published specific email security guidance to try and help organisations make sure their email communications are more secure. Such breaches can cause considerable distress and harm, especially if sensitive personal information is involved, or can be inferred from the context of the email. The Regulator provides the following suggestions: Setting rules to provide alerts to warn employees when they us the CC field. Setting a delay, to allow time for errors to be corrected before the email is sent. Turning off the auto-complete function to prevent the system suggesting recipients’ email addresses. Making sure staff are trained about security measures when sending bulk communications by email Using alternative more secure bulk email solutions. The Central YMCA and Conservative Party are not the first to find themselves in the spotlight for incorrectly using CC. Sadly, I suspect they won’t be the last. A couple of years ago, HIV Scotland was fined for failing to protect personal data. An email was sent to 105 members of HIV Scotland’s Community Action Network (CAN). Email addresses were visible to all recipients in the CC field. Although the email addresses themselves may be considered fairly innocuous, due to the nature of the email, the charity had inadvertently disclosed special category data. The ICO commented assumptions could be made about individuals’ HIV status or risk from the data disclosed. The ICO investigation found a number of shortcomings in the charity’s email procedures, including inadequate staff training and an inadequate data protection policy. The message is simple: the BCC method of bulk email is open to human error, and not advisable when sending bulk emails to multiple recipients and/or if the email could reveal sensitive information. Instead the advice is to use other secure means, such as bulk email services. This would prevent the chance of mistakes being made. The ICO says it would also expect businesses have policies and training in relation to email communications. It’s also worth checking out the National Cyber Security Centre’s useful Email Security Checklist.