Alongside the GDPR, the EU has also proposed changes to the regulation of digital marketing. So if you were in the plumbing business and you suddenly decide to start selling mobile homes, you would not be able to rely on the soft opt-in. Get Cyber secure! Just PECR. You then need to look at PECR to work out whether you can in fact send ... Talking about marketing communications, then you would need to look at PECR on top of GDPR. The soft opt-in under PECR only applies to commercial marketing to consumers. It has to be a similar product or service. Now, I've talked about it a number of times on different videos but never specifically by itself. And you had to send it to them every subsequent time that you sent them a direct marketing communication. So I hope that's clear. It applies where: 1. Easily Train you staff in GDPR. It will replace PECRs in the UK with the aim of bringing regulation up to date with modern technology and in line with GDPR. And thirdly, at the time that you collected their details, you gave them the right to opt-out of marketing communications, and you've reminded them of that right on every subsequent marketing communication, then you have what is known as the soft opt-in rule. We protect your data in accordance with our Privacy Policy. And you have to be sending them something similar to that. ‘Soft opt-in’ can be used by agents, but there are some caveats that you need to be aware of. Regulation 22 of PECR restricts you from contacting an individual via electronic messages without specific consent, except in relation to certain existing customers, for which you can rely on a ‘soft opt-in’. Soft Opt-In There is an exception called the ‘soft opt-in’. See Table One for further information on these previous processess. Which means that you don't need their explicit consent to send marketing communications to individuals. In light of this, I’m surprised to note the following words in the Information Commissioner’s Office’s guidance on PECR The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts Fortunately it doesn’t look like much is changing. The contract doesn't actually have to of been formed. Soft opt-in is a form of temporary consent given by individuals while collecting their email details. In addition, at the time that you collected their details, you had to advise them of their right to opt-out of marketing communications. Charities and political parties, for example, will fall under the default position requiring consent. However we expect that the definition of consent under PECRs will change on 25 May 2018 via the new UK Data Protection Bill, due out next month. In addition, you can only rely on consent obtained prior to 25 May 2018 if it is GDPR compliant. Good afternoon ladies and gentlemen. Avoid the risk of non-compliance. We protect your data in accordance with our Privacy Policy. And this is where the confusion comes from. For this, contact details should have been obtained at the time of a product or service sale, transfer of emails or texts for the sale of similar products or services. What will valid consent look like under the GDPR? It is a different regulation called PECR, or the Privacy and Electronic Communications Regulations, which talk about a number of things. The definition of consent under the GDPR is: Any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed. The soft opt-in law. Reveal IT security weaknesses. In relation to the soft opt-in, that will still be available under the ePrivacy Regulation as currently drafted but there is a significant difference. That's not the case. You will of course still require to process their data in line with the processing principles under the GDPR and provide them with information to ensure fair processing – see our blog on this issue. There is an exception to the default position that consent is required, known as 'soft opt-in'. You give them the opportunity to opt-out when you receive their contact information; and. The GDPR is coming! This means that consent is not required if you are sending marketing message about similar products and services to your customers/clients or those you have negotiated with to provide products or services, as long as: This processing is not based on consent, but rather the legitimate interests processing condition and can only be relied up on by the organisation that collected the contact details, not third parties. The ‘soft opt-in’ rule is likely to apply to the Practice in these circumstances however, the Practice must give its patients a clear chance to opt-out in every message it sends. Alongside the Data Protection Act 1998 in the UK, the Privacy and Electronic Communications Regulations 2003 (PECRs), have defined what is acceptable in relation to direct marketing. And one of which is whether you can send unsolicited direct marketing communications, electronic communications that is, either email or text to individuals or corporate subscribers. But if you rely on the soft opt-in then as long as you are happy that you have complied with the requirement to allow your customer/client the option of opting out when you collected their contact details and they are given this option every time you send them a marketing message, then it appears that this will remain to be within the law – as far as we can tell. DPIA. Suzanne Dibble here, data protection law expert coming to you raw and uncut, from a very hot and sweaty Thailand. ... Soft Opt-in: This can be used with existing customers but does not apply to new customers or contacts. Consequently, because consent is not legally required under the PECR for B2B marketing and marketing to consumers on the basis of a soft opt-in, legitimate interests is a possible lawful basis under the GDPR for these activities, subject to carrying out an LIA. PECR does. What is double opt-in? You need to have been in negotiations for those goods or services or the person is a customer of those goods and services. But marketers can send marketing emails or texts without consent in the situation known as soft-opt-in in the PECR. Cookies and other similar technologies The contents of the draft ePrivacy Regulation have caused controversy and it seems unlikely that the final version will be ready in time. In a nutshell, consent under PECR must now be opt-in, not opt-out, or as sometimes referred to as: “soft” opt-in. PECR – then – GDPR. From setting up your business and trading legally to GDPR. You give them the opportunity to opt-out when you send them subsequent messages. And typically that is the opt-out that you see at the bottom of the emails. And what the soft opt-in rule says is that if you have fulfilled certain criteria, then you can email individual subscribers without their explicit consent. Deliverability Comment While the soft opt-in option may be permitted under PECR, in my deliverability role I see more complaints arising from this than every other email scenario combined. PECR Audit . The PECR has had, to date, 9 amendments. This is sometimes called a "soft opt-in." GDPR Staff e-Training. + IMMEDIATE ACCESS TO 20 GDPR LEGAL DOCUMENT TEMPLATES. Opt- in or Soft opt-in to be marketed by Email (section 11 of DPL & Regulation 202) Opt-in to be 3marketed by SMS (section 11 of DPL & Regulation 20 ) Opt-in to be marketed by Fax (section 11 of the DPL & Regulation 184) Opt-in to be marketed by Automated Telemarketing (Regulation 175) 1 Regulation 21 PECR 2 Regulation 22 PECR 3 Regulation 22 PECR Obviously, you still need to think about everything that we've talked about already for GDPR, but for PECR purposes you can send unsolicited, direct marketing emails and texts to corporate subscribers. And as I said on my video a couple of days ago, if you want to find a way that doesn't involve consent for whatever reason, then look closely on legitimate interests and the other grounds of processing because remember, consent is just one of the lawful grounds of processing personal data under GDPR. If you have any queries about the GDPR, marketing or other data issues, then please contact the, Professional Discipline and Clinical Defence, 10 significant changes to data protection law under GDPR - Insider 9 July 2017, Do Data Protection by Design – or Face a Fine - Boomerang Funding 4 June 2017, Top Ten GDPR Facts Businesses Need to Think About Now. Direct marketers need to be able to show consent was knowingly and freely given. Now, obviously, you need to bear all this in mind whilst also thinking about GDPR. ... (PECR). Our company registration number is 7021047 – a Private Limited Company registered in England and Wales, Cut through all of the confusing, conflicting and incorrect advice on the internet and follow guidance from a top data protection law expert, GDPR COMPLIANCE PACK BONUSES! The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts (eg from bought-in lists). The ICO, and PECR, understand that you have a reasonable right to contact customers. The soft opt-in will still be applying. And individual subscriber is as the name suggests, an individual. And what PECR say is that you can email corporate subscribers without their consent. There is a possible difference here as PECR soft opt-in can apply during negotiation for a sale. So I've seen the draft amendments to the PECR and that's not the case. © 2011-2019 All Rights Reserved, Suzanne Dibble. You now have 18 months to comply! Entering into negotiations, however will not allow the provider to send marketing messages without consent. It seems to have gone a little bit strange, but hopefully, you can hear me, and that's the most important thing. 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