Quick Guide to UK GDPR, Marketing and Cookies How UK GDPR and PECR go hand-in-hand Most have heard of GDPR. However, data protection law existed way before this new kid arrived on the block in 2018. And let’s not forget in the UK, GDPR has an equally important cousin called PECR. The UK’s Privacy and Electronic Communications Regulations (PECR) have been around since 2003 before the days of smartphones and apps. Organisations need to consider both UK GDPR and PECR when it comes to marketing and cookies. Why marketers need to pay attention There are more fines issued by the Information Commissioner’s Office (ICO) for falling foul of the PECR marketing rules than there are under UK GDPR. Under UK data reform plans, the amount the Regulator can fine under PECR could be set to increase substantially to a maximum of around £17 million. Currently the maximum fine under PECR is £500k. So it’s worth taking notice. This is a quick overview, and we’d encourage you to check the ICO’s detailed marketing guidance and cookie guidance. What’s the difference between UK GDPR and PECR? In a nutshell… UK GDPR ✓ Tells us how we should handle personal data – information which could directly or indirectly identify someone. ✓ Sets out requirements organisations need to meet and their obligations. ✓ Provides us with seven core data protection principles which need to be considered whenever we handle personal data for any purpose, including marketing. ✓ Defines the legal standard for consent, which is relevant for direct marketing ✓ Gives people privacy rights, including an absolute right to object to direct marketing. One of the principles is that processing of personal data must be lawful, fair and transparent. This includes making sure we have a lawful basis for our activities. PECR ✓ Sets out specific rules for marketing to UK citizens, for example by emails , text messages or conducting telemarketing calls to UK citizens. ✓ Sets out specific rules when using cookies and similar technologies (such as scripts, tracking pixels and plugins). PECR is derived from an EU directive, and EU countries have their own equivalent regulation which, whilst covering similar areas, may have different requirements, when marketing to their citizens. We’ve written about the specific rules for email marketing and telemarketing here: UK email marketing rules UK telemarketing rules The ‘soft opt-in’ – are you getting it right How do UK GDPR and PECR work together? Direct marketing Marketers need to consider the core principles of UK GDPR when handling people’s personal information. Furthermore, they need to have a lawful basis for each data activity. Of the six lawful bases, two are appropriate for direct marketing activities; Consent and Legitimate Interests. Consent: PECR tells us, for certain electronic marketing activity, we have to get people’s prior consent. UK GDPR tells us the standards we need to meet for this consent to be valid. Consent – Getting it right Legitimate interests: If the types of marketing we conduct don’t require consent under PECR , we may choose to request consent anyway, or we could rely on legitimate interests. For example, marketing to business contacts rather than consumers. Under GDPR, we need to be sure to balance our legitimate interests with the rights and interests of the people whose personal information we are using – i.e. the people we want to market to. ICO Legitimate Interests Guidance  What about cookies? PECR requires opt-in consent for most cookies or similar tech, regardless of whether they collect personal data or not. And we’re told this consent must meet the UK GDPR standards. In simple terms, the rules are: ✓ Notify new users your website/app users about your use of cookies or similar technologies and provide adequate transparent information about what purposes they are used for. ✓ Consent is required for use of cookies, except a narrow exclusion for those which are ‘strictly necessary’ (also known as ‘essential’ cookies). ✓ Users need to be able to give or decline consent before the cookies are dropped on their device and should be given options to manage their consents at any time (e.g. opt-out after initially giving consent).

PECR fine for invalid marketing consent What lessons can we learn from the HelloFresh case? HelloFresh used a marketing consent statement with a clear opt-in box for customers to tick, but the ICO has ruled the wording of the statement did not meet the requirements for consent to be specific and informed. The regulator has issued a £140k fine. Sometimes, the ICO issues fines under PECR based on only a handful of complaints, however in this case thousands of complaints were raised via the ICO spam reporting tool. The online meal order business was found to have sent over 80 million marketing email and text messages between September 2021 to February 2022 without first collecting valid consent. When relying on consent for direct marketing under PECR, consent must meet the UK GDPR requirements; a freely given, specific, informed and unambiguous indication for an individual’s wishes, given by a clear affirmative action. What ‘consent’ statement was used? The consent statement HelloFresh used at the time was as follows: “Yes, I’d like to receive sample gifts (including alcohol) and other offers, competitions and news via email. By ticking this box I confirm I am over 18 years old”. This was relied on to send marketing emails and texts to customers with an active or paused subscription, and to former customers who’d cancelled their subscription within the last 24 months, but had given their ‘consent’ for marketing. Users were able to update their communications preferences via an app, but the settings did not allow users to set preferences individually by channel e.g. phone, text and/or email. ☛ Consent: Getting it Right Key ICO findings Two points were highlighted as being particularly relevant in this case: for consent to be valid it is required to be “specific” as to the type of marketing communication to be received, and the organisation, or specific type of organisation, that will be sending it. ‘consent will not be “informed” if individuals do not understand what they are consenting to. Organisations should therefore always ensure that the language used is clear, easy to understand, and not hidden away in a privacy policy or small print. The ICO found HelloFresh’s statement did not satisfy the requirement for consent to be “specific” and “informed” because: Consent for marketing was not clear, as it was bundled in with other aspects. It combined an age confirmation statement and consent to receive free samples with consent for marketing by email. It failed to tell people about text messages and thereby failed to collect valid consent for marketing by text message. Customers were not told they could receive direct marketing messages for up to 24 months after they’d cancelled their subscription. Key takeaways (no fresh veg included I’m afraid) ✓ Collect consent separately for different aspects /activities – don’t bundle everything into the same tick box In my opinion using; I’d like to receive sample gifts (including alcohol) and other offers, competitions and news via email would have been okay for email marketing. The big problem was adding; By ticking this box I confirm I am over 18 years old. This clearly should have been separate, and the ICO found this was likely to ‘unfairly incentivise’ customers to agree. ✓ Collect consent separately for each marketing media channel you want to use for communications e.g. telephone, text and email In my opinion, HelloFresh may have avoided regulatory scrutiny if the statement had at least mentioned ‘via email and text’. The safest approach (from a regulatory perspective) is to collect consent by channel. Also in our experience, people may want email, but not texts, so separating them can optimise email opt-in. ✓ Don’t assume you can continue sending marketing to people after they have cancelled a subscription with you The last point is interesting and a little surprising. The ICO is indicating that even if a customer has consented to marketing when they take out a subscription, this may not be valid once the customer ends that subscription – unless people are made aware of this when they give their consent. I doubt this point would ever have been picked up if HelloFresh had clearly collected consent for marketing by text in the first place. Picking through the detail of ICO fines under PECR is always worth doing. The findings can give a nudge to check you aren’t doing anything similar. The full details can be found in the ICO’s enforcement notice.