Your views on UK data regime reform proposals

September 2021

DPN Survey on the UK Government’s data regime reform consultation

We’d love to hear your views on the proposals for reforming the data regime in the UK post Brexit.

The consultation can be found here and we’ve published our 12 highlights. Proposals include changes to UK GDPR and the Privacy Electronic and Communications Regulations (PECR).

The DPN will be responding to the consultation and will publish the results of this survey in due course. This survey will close on 21st October.

TAKE PART IN DATA REFORM SURVEY

 

Direct marketing: household names fined for breaking the rules

September 2021

What did We Buy Any Car, Saga and Sports Direct get wrong?

The ICO has announced a series of fines for companies which have contravened the direct marketing rules under the Privacy and Electronic Communications Regulations (PECR).

Fines amounting to £495,000 have been issued to Sports Direct, We Buy Any Car, Saga Personal Finance and Saga Services.

Contraventions include not being able to evidence valid consent, not abiding by the conditions of the ‘soft-opt in’ exemption, and emails sent via affiliates without valid consent.

In the ICO blog announcing the fines, their Head of Investigations commented:

“These companies should have known better. Today’s fines show the ICO will tackle unsolicited marketing, irrespective of whether the messages have been orchestrated by a small business or organisation, or a leading household name. The law remains the same and we hope today’s action sends out a deterrent message that members of the public must have their choices and privacy respected.”

It’s worth noting the Government’s data regime reform consultation proposes increasing the maximum fines under PECR to be in line with GDPR. So in future we could see much higher sums being levied for breaking the rules.

We Buy Any Car

Key finding: failure to meet all ‘soft opt-in’ conditions

We Buy Any Car (WBAC) has been fined £200,000 for sending 191.4 million marketing messages and 3.6 million SMS messages in contravention of the PECR rules.

WBAC came to the attention of the ICO due to complaints received directly to their online reporting tool. Between October 2019 and January 2020, the Regulator received 10 complaints from individuals, and a further two complaints from the same individual.

Much of the investigation focuses on email communications which were sent after people had requested a valuation. People can use the WBAC website to input details about their vehicles to get a valuation.

WBAC claimed it relied on the ‘soft opt-in’ exemption for such messages and said people would anticipate further email communications as part of what was described as ‘journey emails’.

The ICO found while people were informed about these communications, they were not given an opportunity to opt-out at the point their details were collected. This is one of the key conditions businesses have to meet when relying on the soft opt-in exemption.

A clear message to other businesses to assess whether they are taking any risks when relying on the ‘soft opt-in’.  Are you meeting these core conditions?

  • The 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

Saga

Key finding: inadequate consent obtain for marketing by affiliates/partners

Saga Services Limited (SSL) has been fine £150,00 for sending more than 128 million emails in contravention of the PECR rules. Saga Personal Finance (SPF) has been fined £75,000 for sending 28 million emails.

These cases focus on the potential risks when using partners or affiliates to send marketing on your behalf. Both SSL and SPF paid partners and affiliates to send promotional emails on their behalf for lead generation purposes.

The companies were relying on ‘indirect consent’. In other words they hadn’t collected people’s details directly from them, and were using other parties’ lists to promote their services.

The enforcement notice points to the ICO’s direct marketing guidance which states:

“organisations need to be aware that indirect consent will not be enough for texts, emails or automated calls. This is because the rules on electronic marketing are stricter, to reflect the more intrusive nature of electronic messages.”

The guidance goes on to say ‘indirect consent’ may be valid, but only if it is clear and specific enough. Providing an individual with a long, seemingly exhaustive list of categories of organisations that may send marketing communications to them is not likely to be sufficient.

In summary, it was found that SSL and SPF were the instigators of these email communications, and the ‘consent’ collected by affiliates and partners was not sufficient.

A lesson here for all organisations using marketing affiliates and partners, to conduct due diligence. You can’t just simply accept claims by those sending emails on your behalf that they have a ‘fully consented list’.

Sports Direct

Key finding: inability to produce evidence of marketing permissions

Sports direct has been fined £70,000 for sending 2.5 million email messages without valid consent.

The company came to the ICO’s attention after the regulator received 12 complaints via is online reporting tool.

This case focuses on a ‘re-engagement’ campaign whereby Sports Direct had identified an ‘aged dataset’ to send communications to. These were described as records which had not unsubscribed – “a category of data that showed as being opted in to receive email marketing but had not received any marketing emails”.

Sports Direct informed the ICO it was either relying on the ‘soft opt-in’ or ‘consent’ to contact this ‘aged dataset’.

However, during the ICO investigations Sports Direct could not provide sufficient evidence it had valid permission to contact people.

In one case Sports Direct couldn’t identify a lawful basis, because the customer in question had asked for their details to be erased, so they had no record at all.

This ruling acts as reminder to all organisations to keep adequate records and specifically highlights the risks of emailing customers who you haven’t been in contact with for some time.

It also confirms that, even if someone submits an erasure request, you should keep minimised but detailed enough records for a suitable period of time so you can adequately respond to any subsequent complaints.

Full details of the above enforcement action can be found on the ICO website.

UK data regime change consultation: 12 highlights

September 2021

The Government’s consultation on UK data protection reform contains a number of sensible proposals to ease the burden on business. There are also a few surprises likely to raise eyebrows in Brussels. The headlines are:

  • The UK is not about to become the ‘Wild West’ for data, as some may have feared
  • Changes to both UK GDPR and the UK’s Privacy and Electronic Communications Regulations (PECR) look likely
  • A probable relaxation of several areas of UK GDPR, with a focus on outcomes rather than prescribed processes
  • Plans to increase fines under PECR to match those under GDPR, a clear warning to those flagrantly disregarding marketing rules
  • The consultation is a ‘direction of travel’ – nothing’s carved in stone. It’s business as usual for now

The Government’s overall aim is to drive economic growth and innovation and strengthen public trust in use of data.

The way they want to achieve this is to alleviate some of the more prescriptive GDPR obligations on business, whilst retaining a robust data protection regime built largely on existing laws.

This approach is in keeping with the UK’s common law tradition, also used in Australia, New Zealand, Jamaica, Pakistan and Singapore (to name a few), as opposed to the statute law system used across Europe. Common law is viewed by its proponents as more flexible. It’s also why legal proceedings tend to move more quickly in UK courts than those in the EU.

It’s clear the UK Government hopes any changes will be compatible with EU equivalency, enabling the UK to retain adequacy.

Data regime proposals 12 highlights

1. Accountability & Privacy Management Programmes (PMPs)

Changes to the accountability framework are proposed, with businesses expected to have a Privacy Management Programme in place. This approach to accountability is long-established in countries such as Australia, Canada and Singapore.

It’s argued this would allow organisations to implement a risk-based privacy programme based on the volume and sensitivity of personal data they handle, and the types of activities they’re involved in.

By doing this, the proposal seeks to do away with some of the accountability obligations under the current UK GDPR, which may be considered to be more burdensome.

Organisations will still need to know where their data is, what its used for, apply lawful bases, implement robust security measures, manage suppliers, assess privacy risks and fulfil privacy rights. But there could be more flexibility and control over how you achieve this.

This doesn’t mean ripping up all the hard work you’ve done to comply with GDPR.

When the dust has settled, many organisations may choose to stick with the tried and tested framework they’ve already established. Others may jump on the opportunity to adapt their approach.

And let’s not forget, UK businesses operating in Europe will still be governed by EU GDPR.

2. No mandatory Data Protection Officers

The consultation proposes removing the mandatory requirement to appoint a DPO.

Under GDPR, a DPO must be appointed by public authorities – and in the commercial sector – if organisations meet specific criteria. It also sets out requirements and responsibilities for the role.

It’s proposed the requirement for a DPO is replaced with a requirement to designate a suitable individual (or individuals) responsible for overseeing compliance. However, the new law wouldn’t lay down specific requirements & obligations for this role.

3. No mandatory requirement for Data Protection Impact Assessments 

Currently, GDPR makes a DPIA mandatory for high-risk activities. It also sets out core elements such an assessment must include.

Furthermore, it requires supervisory authorities to establish a list of processing operations which definitely require a DPIA.  This led authorities, including the UK’s ICO, to dutifully publish lists of where DPIAs would be considered mandatory, as well as best practice.

The Government is proposing removing this mandatory requirement, although this won’t mean throwing out screening questionnaires and DPIA templates, which are often very useful.

The onus would be on organisations to take a proportionate and risk-based decision on when they consider it appropriate to carry out impact assessments and how they go about this.

4. More flexible record keeping

Completing and maintaining up-to-date records, known as Records of Processing Activities (RoPA) has been one of the more onerous aspects of GDPR.

Again, current law and guidance is prescriptive about records keeping requirements – although small and medium sized organisations (with less than 250 employees) are exempt from this.

It’s proposed a more flexible model for record keeping is introduced.

Maintaining a central record of what personal data you hold, what it’s used for, where it’s stored and who it’s shared with is a sensible and valuable asset for any organisation. Many feel such records are vital to effective data risk management.

So again, you don’t need to rip up your current ROPA, but you may soon be allowed to adapt your record keeping to suit your business and perhaps make your records easier to maintain.

5. Data breach notification threshold changes

It’s clear GDPR has led to data protection authorities being inundated with data breach reports. The ICO, for one, has highlighted a substantial amount of over-reporting.

This isn’t surprising when there’s a legal obligation for organisations to report a personal breach if it is likely to represent a ‘risk’ to individuals.

Its proposed organisations would only need to report a personal data breach where the risk to the individual is ‘material’.  The ICO would be encouraged to produce clear guidance and examples of what would be ‘non-material’ risk, and what would or would not be considered a reportable breach.

6. Data Subject Access Requests changes

The stated purpose of a subject access request is to give individuals access to a copy of their personal data so they can ‘be aware and verify the lawfulness of processing’ (although many organisations might question if this is why some submit requests).

The consultation recognises the burden of responding to DSARs has on organisations, especially smaller businesses which often lack the resources to handle them.

The possibility of charging a nominal fee could be reintroduced. It’s also proposed the threshold for judging when a request may be vexatious / manifestly unfounded is amended.

7. Cookies

Headlines surrounding UK data reform usually focus on ending the barrage of cookie pop-ups. The consultation proposes two main options:

  • Permitting organisations to use analytics cookies and similar technologies without the user’s consent. In other words, treating them in the same way as ‘strictly necessary’ cookies. It’s worth noting that this proposal is included in the most recent EU ePrivacy draft. (It’s accepted further safeguards would be required to ensure this had a negligible impact on user privacy and any risk of harm. It would also not absolve organisations from providing clear and comprehensive information about cookies and similar technologies).

or

  • Permitting organisations to store information on, or collect information from, a user’s device without their consent for other limited purposes. An example given is that this could include processing necessary for the legitimate interests of controllers where the impact on privacy is likely to be minimal.

The Government says it is keen to hear feedback on the most appropriate approach.

8. Legitimate Interests

There’s a proposal to create an exhaustive list of legitimate interests which organisations could rely on without needing to conduct the balancing test, i.e. no Legitimate Interest Assessment (LIA) required.

The following are some of the examples given:

  • ensuring bias monitoring, detection and correction in AI systems
  • statutory public communications and public health & safety messages by non-public bodies
  • network security
  • internal research and development projects

Where an activity is not on the list, we’re assuming assessments using the current 3-step test would still be needed.

9. Extended use of the ‘soft opt-in’

PECR currently permits email and SMS marketing messages where consent has been given, or for existing customers only, when the soft opt-in requirements are met.

This exemption to consent for existing customers is only currently available to commercial organisations. It’s proposed this could be extended to other organisations such as political parties and charities.

This could be great news for charities, but could it lead to a deluge of unwanted messages from political parties?

10. Research purposes

The Government wants to simplify the use of personal data for research, with a specific focus on scientific research.

Considerations include establishing new lawful grounds for research (subject to ‘suitable safeguards’) and incorporating a clear definition of ‘scientific research’.

11. Artificial intelligence

It’s proposed certain automated decision-making should be permitted without human oversight.

GDPR prohibits this unless necessary for a contract with an individual, authorised by law or based on explicit consent. The consultation suggests Article 22 is scrapped.

The aim is to ‘deliver more agile, effective and efficient public services and further strengthen the UK’s position as a science and technology superpower’.

It’s hoped this can be achieved by developing a safe regulatory space for responsible AI development, testing and training which allows greater freedom to experiment.

In the consultation press release, an AI partnership between Moorfields Eye Hospital and the University College London Institute of Ophthalmology is highlighted.  Researchers have trained machine-learning technology to identify signs of eye disease, which is more successful than using clinicians.

This is cited as a clear example of the type of data use which should be encouraged, not hindered by law.

12. Reform of the ICO

The Government wants to assert greater control over the UK’s data protection regulator, the Information Commissioner’s Office.

They propose to introduce a new, statutory framework to set out the ICO’s strategic objectives and duties and a power for the Secretary of State for DCMS to prepare a statement of strategic priorities to inform how the ICO sets its own regulatory priorities.

This would will bring the ICO into line with other UK regulators such as Ofcom, Ofwat and Ofgem.

The proposals also include introducing a new overarching objective for the ICO, in addition to its other functions, tasks and duties with two key elements:

  • Upholding data rights and safeguard personal data from misuse
  • Encouraging trustworthy and responsible data use, to uphold the public’s trust and confidence in use of personal data

Summary

Yes, a shake-up of UK data laws and enforcement is on the horizon, but the final outcome remains unknown, and a healthy debate will surely follow.

The consultation closes on 19th November 2021, and there will undoubtedly be some time before any changes become law.

For the time being its business as usual, but this document gives us a clear idea of what the future might look like.

Meanwhile, the EU will be keeping a very close eye on developments, and it’s possible the UK could be deemed to be going a step to far – it’s easy to see EC adequacy decisions being held over the UK Government like the Sword of Damocles.

The UK Government’s objective is to give organisations more control and flexibility around data protection management within a less burdensome regime, which supports the data economy and drives innovation.

In some ways, it could even be seen as a move towards giving organisations who don’t take data protection seriously more rope to hang themselves with.

The full consultation document is worth a read and can be found HERE.

Simon Blanchard, Phil Donn & Julia Porter – September 2021

ICO says most public sector messages are not direct marketing

August 2021

One of the unwelcome side effects of the pandemic has been the proliferation of bogus emails and texts trying to illegally elicit personal data from us.

I speak with my elderly mother almost daily, repeating the same lines; ‘don’t click on the link’, ‘don’t respond if someone is asking you to enter your details’, ‘hang up’, ‘delete it’, ‘you haven’t ordered a package, please ignore it’.

However, we’ve also all received other communications which I feel have been largely helpful. Messages such as pandemic update emails from our local councils, notifications about vaccines from our GPs, and text messages about the NHS app.

But would some of these be regarded as direct marketing messages? Did some contravene the rules under PECR (the Privacy and Electronic Communications Regulations)?

Possibly, perhaps in some cases definitely (under existing guidance). But does it matter? Surely, there’s an argument to say some communications may not be strictly necessary but are informative and useful, and don’t unduly impact on our privacy.

This is clearly an area the ICO felt needed addressing. The Regulator has issued new guidance, which appears to alter the long-standing interpretation of direct marketing.

What does the new guidance say?

The ICO says public sector organisations can send ‘promotional’ messages which would not be classed as direct marketing, if they are necessary for a public task or function.

This is significant. ‘Promotional’ messages have always been considered as ‘direct marketing’ before, regardless of whether they are sent by commercial companies, not-for-profits or the public sector.

It also means, in the eyes of the Regulator, such public sector ‘promotional’ emails, SMS messages and telephone calls do not fall within the scope of the UK’s Privacy and Electronic Communications Regulations (PECR).

In a blog announcing the new guidance the ICO states:

“Any sector or type of organisation is capable of engaging in direct marketing. However the majority of messages that public authorities send to individuals are unlikely to constitute direct marketing.”

Anthony Luhman, ICO Director, goes on to say:

“Our new guidance will help you understand how to send promotional messages in compliance with the law. Done properly the public should have trust and confidence in promotional messaging from the public sector.”

As said, until now any ‘promotional’ message was considered direct marketing. So this new guidance raises some questions:

  • Has the long-standing interpretation of the definition of direct marketing been changed?
  • Is this a sensible new interpretation?
  • Will this open the floodgates to us being spammed by public authorities?

What is the definition of ‘direct marketing’?

The definition is broad. Under section 122(5) of the DPA 2018 the term ‘direct marketing’ means “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”.

A definition which also applies for PECR.

What exactly is meant by ‘advertising or marketing material’ is not clarified in the DPA 2018 or PECR, but the long-standing interpretation of this has been that it is not limited to commercial marketing and includes any material which promotes ‘aims and ideals’.

This interpretation is clear in the ICO’s Direct Marketing Guidance and more recently in the draft Direct Marketing Code, published in January 2020, which says of directly marketing;:

“It is interpreted widely and covers any advertising or marketing material, not just commercial marketing. For example it includes the promotion of aims and ideals as well as advertising goods or services. This wide interpretation acknowledges that unwanted, and in some cases nuisance, direct marketing is not always limited to commercial marketing.”

When is a promotional public sector message not direct marketing?

In a nutshell, the new guidance states;

  • If you’re a public authority and your promotional messages are necessary for your public task or function, these messages are not direct marketing
  • If your messages by telephone, text or SMS are not direct marketing, you don’t need to comply with PECR. (But you still need to comply with UK GDPR).

The ICO is now drawing a distinction between promotional messages necessary to fulfil a public task or function, as opposed to messages from public authorities promoting services which a user pays for (such as leisure facilities) or fundraising activities. The latter would still be considered direct marketing.

The new guidance provides the following interpretation;

“In many cases public sector promotions to individuals are unlikely to count as direct marketing. This is because promotional messages that are necessary for your task or functions do not constitute direct marketing. We do not consider public functions specified by law to count as an organisation’s aims or ideals.”

This is in marked contrast to the wording of the draft Direct Marketing Code which says:

‘If, as a public body, you use marketing or advertising methods to promote your interests, you must comply with the direct marketing rules.”

What types of messages are direct marketing and which aren’t?

The following examples are given of the types of promotional content a public authority might communicate which would NOT constitute direct marketing;

  • new public services
  • online portals
  • helplines
  • guidance resources

The ICO says promotional messages likely to be classed as direct marketing include:

  • fundraising; or
  • advertising services offered on a quasi-commercial basis or for which there is a charge (unless these are service messages as part of the service to the individual)

How do you decide if messages are necessary for public task or function?

The ICO says it accepts all public authorities will have what it describes as ‘incidental powers’ to promote their services and engage with the public.
It therefore says it is not necessary for a public authority to identify an ‘explicit statutory function’ to engage with promotional activity which is deemed ‘necessary’ for a task or function.

However, the ICO does stipulate you can’t just say a direct marketing message is no longer direct marketing because the lawful basis has been stated as public task.

Nor can you just decree a promotional message is ‘in the public interest’, this won’t automatically mean it isn’t direct marketing.

What the Regulator expects is for public authorities to identify a relevant task or function for the communication they wish to send.

There’s a risk here the ICO has not been clear enough. This could cause confusion and I suspect plenty of deliberation over which messages are or are not direct marketing.

Transparency

It’s made clear that even if you determine certain promotional messages are not direct marketing, this doesn’t mean you can ignore other basic data protection principles.

You still need to make sure people know what you are doing with their personal data, and this must be within their reasonable expectations.

In other words public authorities must make it clear to people they intend to send promotional messages which are necessary for a public task or function. Which may mean updating their privacy notices.

Right to object

People have an absolute right to object to direct marketing, but they also have a general right under data protection law to object to processing, which includes when organisations are relying on the lawful basis of public task. A right people should be made aware of.

The guidance makes it clear – if someone objects to a promotional message from a public authority, it will only be possible to continue sending messages if ‘compelling legitimate grounds’ to do so can be demonstrated.

The ICO makes the point it would be difficult to justify continuing to send unwanted promotional messages if this goes against someone’s wishes.

My advice would be to include a clear ability to opt-out on any promotional message; any message which isn’t an essential service message.

(Albeit, this could cause some configuration issues for public authorities who don’t have sophisticated systems which can distinguish between different types of messages and opt-outs).

Lawful basis for promotional non-marketing messages

The ICO points to two lawful bases under UK GDPR for sending promotional messages necessary for a public task or function, either public task or consent.

The guidance suggests just because you can rely on public task, doesn’t mean you shouldn’t consider consent, which may be considered appropriate for public trust reasons.

The ICO accepts that Public Authorities may be reluctant to rely on consent, due to a potential imbalance of power, but says it may be considered appropriate if the individual has a genuine free choice to give or refuse to consent to promotional messages.

A change in interpretation

This new guidance certainly seems to represent a marked change in the ICO’s previous interpretation of direct marketing.

It’s interesting to note the following pertinent examples which are present in the draft Direct Marketing Code (which I suspect may be altered in the final version).

Example

Scenario A
A GP sends the following text message to a patient: ‘Our records show you are due for x screening, please call the surgery on 12345678 to make an appointment.’
As this is neutrally worded and relates to the patient’s care it is not a direct marketing message but rather a service message.

Scenario B
A GP sends the following text message to a patient: ‘Our flu clinic is now open. If you would like a flu vaccination please call the surgery on 12345678 to make an appointment.’

This is more likely to be considered to be direct marketing because it does not relate to the patient’s specific care but rather to a general service that is available.

It seems to me Scenario B, under the new guidance could be classed as a promotional message, but NOT direct marketing.

(Personally, I would never have complained about Scenario B, it’s a helpful, informative message and hardly in the realms of the untargeted nuisance spam).

The draft Code goes on to confirm the following would be direct marketing;

  • a GP sending text messages to patients inviting them to healthy eating event;
  • a regulator sending out emails promoting its annual report launch;
  • a local authority sending out an e-newsletter update on the work they are doing; and
  • a government body sending personally addressed post promoting a health and safety campaign they are running.

The specific examples from the draft Code were used by people to question whether some of the messages they received during the pandemic contravened PECR.

Would these types of communications now no longer be direct marketing?

It would certainly seem like they aren’t if you go by the clear message from the ICO that; ‘the majority of messages that public authorities send to individuals are unlikely to constitute direct marketing.’

Will the above examples disappear from the final Direct Marketing Code?

In summary

This new guidance is likely to be welcomed by some who have been frustrated, or indeed bewildered their communications could be considered direct marketing.

However, it could also muddy the waters. It leaves the public sector needing to clearly define different types of communications and make sure relevant teams are adequately briefed to understand the difference.

As I see there are three types of communication:

a) Service messages – essential messages relating to the provision of a service
b) Promotional messages for public task or function (which are highly likely to need an opt-out)
c) Direct marketing messages (must have an opt-out to honour the individual’s absolute right to object).

I just wonder whether the term ‘promotional messages’ could have been avoided in this guidance. I am not sure I have a satisfactory alternative, but perhaps something like ‘information messages’ – i.e. messages that are not essential service messages but provide helpful information.

I also wonder whether there could have been a carve out for important health-related messages, rather than applying this new interpretation to any ‘promotional’ message from any public authority.

Let’s hope the public sector now pays due care and attention to transparency, provides an opt-out to all but essential messages, and doesn’t abuse this new-found power to engage with us beyond what is actually necessary.

 

Need advice on complying with the direct marketing rules? Do your people need refresher training? Our experience team can help you navigate GDPR, PECR and regulatory guidance. CONTACT US.

 

Google Sandbox launch delayed – what now?

July 2021

A stay of execution for third-party cookies…

When it was originally announced, in late 2019, that Google would no longer support third-party cookies and that they would introduce alternative means of targeting audiences through the Google sandbox and specifically using FLoC (Federated Learning of Cohorts) there were gasps of horror and surprise in the advertising community.

Mozilla and Firefox had already stopped supporting third party cookies but these browsers represented a tiny proportion of all browser users. With Google Chrome representing around 65% of all users, this was a game-changer and spelt the end of behavioural targeting as we knew it. What would advertisers do without their precious third party cookies?

What was FLoC?

In a nutshell, FloC meant that instead of third-party trackers, the browser would do the profiling of users to create behavioural segments which could then be shared with websites and advertisers.

The obvious downside to this project was that Google would have greater control over the deployment of targeting tools. There were enough people who believed that this was anti-competitive.  Many have said it was an exercise to control the advertising market even further. There was also a fear that this targeting would be discriminatory and result in predatory targeting.

Since then, there has been a flurry of activity with publishers and advertisers trying to figure out what alternatives could be used to effectively target new customers in a more privacy-friendly way.

Privacy Sandbox delayed

In late June, Google announced that they had delayed the deadline for deprecating third party cookies. Instead of late 2021, the new self-imposed deadline is late 2023.

They also announced they will end the testing of FloC on July 13th which suggests they are going back to the drawing board to develop a privacy friendly targeting solution that potentially replaces FLoC.

The main question is why and what should advertisers do now?

1. The Sandbox solution isn’t ready and doesn’t work
One obvious answer is that the new targeting solution being developed in the sandbox isn’t ready. Whatever has been built hasn’t been tested in anger and there is no guarantee that they work as well as third party cookies

2. Google’s FLoC has been blocked
Big players such as Amazon have blocked FLoC. This would have been a serious concern if other large retailers/publishers followed suit and rendered the solution unusable.

3. Google are under pressure from regulators
The most likely answer. Google has allowed at least 6 months to talk to the Competitions and Markets Authority in UK (CMA). They are also the subject of other anti-trust investigations across Europe.

There was general concern amongst advertisers and ad tech providers that whatever is being planned is anti-competitive. They believed that removing third-party cookies would undermine publishers and ad tech providers. In addition, whatever is developed has to be privacy-friendly and considered compliant by ICO.

The new timeline for third-party cookie deprecation starts with the first stage in late 2022 when Chrome will test Privacy Sandbox features and monitor for industry adoption. That stage is expected to last nine months. This is also when the CMA will evaluate Chrome’s cookie changes.

If the Privacy Sandbox features are adopted by publishers and developers, and Google gets the go-ahead from the CMA, then Chrome will move to Stage 2: a three-month period when the browser will phase out third-party cookies.

What should advertisers be doing in the meantime?

This delay is a golden opportunity for advertisers to develop their own strategies for replacing third party cookies. There has been significant innovation in this area over the last 2-3 years, although adoption has been relatively slow with many companies not making much progress. An 18 month – 2-year breather will be most welcome.

What are the main options open to advertisers?

1. Build out a larger body of first-party (and zero-party) data
The best and most accurate data is that which you capture directly from your customers. It is freely given and is likely to deliver better response rates and conversions. This could include transaction data and registration data. The recently coined term – zero party data – is effectively a subset of first-party data and is defined as data that has been freely given by the individual through channels such as preference centres, surveys and other data collection methods. Building the first-party database isn’t always easy for advertisers and can take a long time but there is a clear motivation now to get on with it.

2. Share second-party data
A growing area is the development of pseudonymised data pools or clean rooms. In this context advertisers will sign a data-sharing agreement with another data owner to share compliantly collected, pseudonymised data to help enhance their own records.

3. Adopt contextual advertising
Contextual advertising relies on you using your compliantly collected first-party data to create segments and profiles. These can then be used to target new prospects using context as the basis for targeting rather than behaviour. These solutions often rely on data remaining on an individual’s device until the point when they start to consume relevant content – known as edge computing.

Summary

In summary, a lot is going on in advertising and the delay in the delivery of the Privacy Sandbox will be most welcome to advertisers. It gives them time to build out their first-party data as well as investigate the wide variety of new cookie-less targeting solutions that are springing up. No doubt Google will deliver a compliant solution but in the meantime, advertisers have a breathing space to sort out their data strategies.

 

Struggling with data protection? Ease the strain with our no-nonsense advice and support via our flexible Privacy Manager Service. Find out how our experienced team can help you. CONTACT US.

Marketing and the ‘soft opt-in’ – are you getting it right?

June 2021

The ICO has recently issued a £10,000 fine to a pizza company for sending ‘nuisance marketing messages’ to its customers.

Papa Johns claimed it was relying on the exemption to consent, known as the ‘soft opt-in’, but it was found to have not abided by the rules of this exemption.

So, what is the ‘soft opt-in’ and how can you use it, within its limitations, and not fall foul of the rules? What did Papa John’s get wrong?

What is the soft-opt-in?

The laws governing electronic marketing are covered in the Privacy and Electronic Communications Regulations 2003 (PECR) and these govern email, SMS and telemarketing.

Under PECR you need to have consent to send email or SMS marketing messages to what are termed ‘individual subscribers’. These are people who personally subscribe to their email/SMS service provider (this is often referred to as B2C marketing).

But you don’t always legally need consent…

There’s an exemption under PECR for email or SMS marketing to existing customers. This is commonly known as the ‘soft opt-in’. An annoyingly ambiguous term as it permits the use of an ‘opt-out’ mechanism!

When relying on the ‘soft opt-in’ you need to be careful to make sure you follow the rules about when this exemption applies, which can be summarised as:

  • The 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; AND
  • You provide the ability to opt-out in every communication

For more information see PECR Regulation 22 and the ICO’s Guide to PECR.

It’s worth noting the rules on consent and the soft opt-in under PECR do not apply to ‘corporate subscribers’. A corporate subscriber is where the organisation (as opposed to the individual) has subscribed to the email/SMS service. (Commonly referred to as B2B marketing).

To quote the ICO on this, here’s an extract the draft Direct Marketing Code of Practice:

“The PECR rules on marketing by electronic mail (e.g. email and text messages) do not apply to corporate subscribers. This means you can send B2B direct marketing emails or texts to any corporate body. However, you must still say who you are and give a valid address for the recipients to unsubscribe from your emails.”

You do however need to be mindful sole traders and some partnerships fall under the definition of ‘individual subscribers’, so would fall under the consent / soft opt-in rules for B2C marketing.

What did Papa John’s get wrong?

The ICO says it received 15 complaints from Papa John’s customers about the unwanted marketing they were receiving by text and email. The Regulator points out, ‘the complaints noted the distress and annoyance the messages were causing’.

Subsequent ICO investigations found the pizza company sent more than 168,000 messages to its customers without valid consent.

Papa John’s claimed it was relying on the ‘soft opt in’ exemption in order to send these marketing messages. But the ICO ruled they were unable to rely on this exemption for customers who’d placed orders over the telephone, as people had not been given the opportunity to opt-out at this point. The ICO also makes the point that customers were not provided with a privacy notice.

Andy Curry, ICO Head of Investigations said:

“The law is clear and simple. When relying on the ‘soft opt in’ exemption companies must give customers a clear chance to opt-out of their marketing when they collect the customers details. Papa John’s telephone customers were not given the opportunity to refuse marketing at the point of contact, which has led to this fine.

“We will continue to take action against companies who may be gaining unfair advantage over those companies that adhere to the law and comply with electronic marketing law”.

The message is clear, you need to tell people you’d like to send them marketing and give them an opportunity to object when you collect customers’ details in order to rely on the ‘soft opt-in’. You can read more from the ICO about this case here.

This latest fine comes hot on the heels of action against another company for falling foul of PECR. A case which focused on the often fine line between a service message and a marketing one. I wrote about this here; Are your service message actually direct marketing?

Both these fines act as warnings to organisations, and provide a good opportunity to review practices and check you aren’t taken any unnecessary risks.

 

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Are your service messages actually direct marketing?

Navigating the line between service messages and marketing messages can be tricky, as American Express has just discovered.

The ICO has fined AMEX for a contravention under the Privacy and Electronic Communications Regulations (PECR), and this is not the first time the regulator’s spotlight has shone on this area.

Others have been sanctioned before for sending ‘service’ messages that are found to fall under the definition of direct marketing, to customers who’ve opted out of marketing.

It’s important to point out we all have feet of clay; I’m sure many other organisations are shimmying along this regulatory tightrope. Some consciously pushing the boundaries, others inadvertently breaking the rules.

And just to be clear, in this case the ICO found AMEX hadn’t deliberately flouted the rules but did find them to be negligent.

With that in mind, what did AMEX do? How can you avoid making the same mistake?

The ruling in a nutshell

An ICO investigation found AMEX had sent marketing emails to people who’d not given their consent or who’d opted out. More than four million messages were sent over the course of a year (June 2018 – May 2019).

The key here is AMEX’s decision to internally classify these emails as ‘service’ messages, which is why customers who’d opted out / objected to marketing still received them.

The ICO disagreed and determined these were direct marketing, and marketing opt-outs should have been applied.

What was the content of the emails?

During the investigation AMEX provided the ICO with a number of different types of emails which they classed as ‘service’ messages.

The nature of these emails ranged from encouraging people to download the AMEX app, to how to make the most of an AMEX card, rewards and offers, how to earn more rewards by referring friends, getting an improved rate on cashback, and so on.

Why were they internally classed as ‘service’ messages?

In its defence AMEX said the emails were an integral part of the service they provide to AMEX customers. Their argument was that a crucial aspect of being an AMEX customer was taking advantage of member benefits. They said this was cited by customers as one of the primary reasons for having an AMEX card.

AMEX therefore determined these messages were necessary and “required to be sent based on legal and contractual requirements”.

They said the aim of the communications was to reinforce messages, to make sure customers were clear on how their benefits worked. They also said they wanted to make sure card members got value for money and “avoided any disappointment or detriment”.

In short, you might argue AMEX decided to fix the line between service and marketing messaging too far in the direction of marketing. The ICO certainly thought so.

I’m sure AMEX won’t be alone in having taken this approach.

The ICO’s conclusion

The regulator assessed the content of the emails and found the following:

  • The emails encouraged customers to use their AMEX credit cards to make purchases or, in specific cases, download an app
  • The emails were clearly of an advertising and promotional nature
  • None were “neutrally worded and purely administrative” in nature

Whatever their stated purpose internally, the ICO found the email content fell under the definition of direct marketing. The emails were aimed at encouraging customer actions from which AMEX would financially gain.

The Data Protection Act 2018 (“DPA 2018”) defines direct marketing as “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”. This definition also applies for the purposes of PECR.

These emails were sent to customers irrespective of whether they had given their consent to promotional emails (when they opened an account) or had subsequently opted-out of marketing emails.

The ICO ruled that as these were not essential service messages, AMEX could not rely on them being necessary for contractual requirements.

The penalty notice makes it clear:

There is no exemption under PECR Regulation 22 which allows organisations to send marketing emails they consider advantageous for subscribers where they have not received prior consent to do so. If there were, such an exemption would likely be relied on by all persons in breach of the PECR direct marketing rules.

In its findings the ICO says AMEX should have made sure it’s marketing operations complied with the relevant statutory regime, and that it was reasonable to suppose AMEX should have been aware of its responsibilities.

Who complained?

The penalty notice reveals AMEX received twenty-two complaints about ‘service’ emails during the period investigated. Five people complained directly to the ICO, some after initially raising their concerns with AMEX (but not all).

What struck me was the tiny percentage of complainants… especially when you consider AMEX sent out four million emails. (Admittedly this figure is likely to include repeated emails to the same individuals).

It starkly illustrates how only a few complaints can cause a world of pain. (There have been cases in the past based on a single complaint).

How was the fine determined?

For those wondering why this wasn’t an eye-watering multi-million pound fine, it should be remembered this was a contravention of PECR not GDPR. Under PECR, the maximum fine that can be levied is £500,000.

In determining whether to issue a monetary notice, the Commissioner judged that AMEX had access to sufficient financial resources to pay the proposed fine without causing it undue financial hardship.

The Commissioner considered a penalty sum of £90k was both reasonable and proportionate.

The penalty notice notes AMEX undertook its own independent internal review, when the Commissioner began her investigation.  AMEX stopped marketing to customers who had opted-out of receiving direct marketing communications by email and has made changes to processes and procedures to ensure compliance with PECR.

Okay, so what IS a service message?

The ICO’s draft Direct Marketing Code of Practice sets out what would be considered a ‘service message’.

Essentially, it’s a communication sent to individuals for administrative or customer service reasons, which must be neutral in tone, purely providing important and necessary service information.

It must NOT include any advertising or promotional materials. The ICO says the key is in the ‘phrasing, tone and context’.

If a message is actively promoting or encouraging an individual to make use of a particular service, a special offer, or upgrade for example, then it is likely to be direct marketing.

And, if your email communications are likely to fall under the definition of direct marketing, you should be adhering to the email marketing rules under PECR.

If you’d like more detail see Understanding email marketing rules and the ICO Guide to PECR.

What lessons can be learnt?

This fine is a wake-up call for many organisations who’ve not clearly defined service versus marketing messages. And for those who are knowingly taking a risk? Watch out!

Do you have clear rules for your marketing and communications teams to follow? Do your people understand where to draw the line? Do you have an internal compliance review process for emails purported to be ‘service;’ emails?

In AMEX’s case, the penalty notice reveals they did have an internal email communications policy with training in place. However, the ICO found they’d classified ‘service’ messages incorrectly.

I suspect this case will be of particular interest to businesses who’ve taken a decision to class customers as ‘members’ and taken the step of bundling promotional messages in as being necessary ‘service’ messages.

This case shows semantics aren’t good enough here; the ICO takes a strict interpretation and a handful of complaints can put you firmly in their crosshairs.

The key, for me, is AMEX sent emails which were not absolutely necessary, and AMEX customers who didn’t want to receive these had no way of objecting to them.

Let’s not forget the right to object to processing is a fundamental data protection right; you need a robust justification for refusing to fulfil this. (And the right to object to direct marketing is absolute).

Maybe if AMEX been able to provide an opt-out from such comms, given people a choice, some wouldn’t have felt the need to complain to the ICO.

There’s a clear message here to take your customers seriously, if they are complaining they may have a point. You can read the full details in the ICO Penalty Notice.

 

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EU ePrivacy Regulation: a significant step forward?

February 2021

Four years on from the first draft of the proposed ePrivacy Regulation and an impressive fourteen drafts later, is the end in sight?

This month saw a significant leap forward as the Council of the European Union reached agreement on a mandate for negotiating the final text with the European Parliament and European Commission.

Okay, ‘leap’ is probably being too dramatic! A significant milestone yes, but it’s still likely to take months before a final version can be agreed and adopted. And there’s plenty of room for the text to deviate from where we are now.

What is the ePrivacy Regulation?

Just to recap, the purpose of the ePrivacy Regulation is to overhaul the EU ePrivacy Directive of 2002 (and subsequent amendments) . This governs the processing of personal data and privacy with regard to electronic communications.

The current Directive, by its very nature is interpreted rather differently across EU Member States and gives us a myriad of rules to navigate if we want to communicate across Europe.

For example, the UK’s own law derived from the EU Directive is called the Privacy and Electronic Communications Regulations (known as PECR) and has different rules for electronic marketing than you’d find in Spain or Germany.

The aim of the new ePrivacy Regulation is to update the rules to reflect significant technological developments and to align these rules across the EU, alongside GDPR. No small task!

As a Regulation rather than a Directive, the hope is for harmonisation – the same rules across all EU Member States. Leaving less wriggle-room for individual Member States to interpret the rules in differing ways.

At a top-level, this complex new legislation sets out to cover areas such as:

  • Electronic communications to individuals (e.g. email, SMS and telephone marketing)
  • Protection of information on end-users’ devices (e.g. the use of cookies and similar technologies)
  • Electronic communications metadata, including geo-location data
  • Machine-to-machine communications

I remember reading concerns raised that many Data Protection Officers are unlikely to have sufficient knowledge and skills to understand the legislation fully due to it’s complexity.

Some believe this complexity means full agreement will be impossible to achieve, and that either the Regulation is doomed or it will emerge with a number of areas where individual Member States can still go their own way.

When could the ePrivacy Regulation be enforced?

Once finalised and adopted, it’s proposed there will be a two year transition period (like there was with GDPR) to give businesses time to prepare and comply with the new rules.

So, IF the Regulation was to be finalised later this year, it wouldn’t be enforced until 2023.

What about Brexit?

The UK, in theory, won’t have to adopt this EU Regulation. But in practice may decide it makes sense to implement it into UK law, so there is a parity with European counterparts.

It’s worth noting the Brexit trade deal commits both parties to upholding high standards of data protection.

Ultimately we’ll have to wait and see what stance the UK takes. Either way, a new EU Regulation would still impact, for example, on organisations that send electronic communications to EU citizens.

What else has been happening?

In an attempt to keep pace with the rapidly evolving tech landscape, the EU has already started to implement elements of the ePrivacy Regulation into other laws.

For example, since December 2020 the European Electronic Communications Code has required EU Member States to amend their telecommunications laws by expanding the definition of “”Electronic Communications Services” in to include so-called “Over-the-Top-Services” such as messaging services – such as WhatsApp or Zoom.

What are the next steps?

The Council of the EU, the European Parliament and the European Commission will now start trialogue negotiations to agree the final text.

The Council’s version of the current draft ePrivacy Regulation text can be found here and the press release here.

 

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