In this instalment of our GDPR FAQS mini blog series, we consider whether organisations can send marketing communications to anybody who may be interested in their services or products.
Our Frequently Given Response:
An organisation may be able to send electronic marketing communications without obtaining consent where it is able to rely on the second exemption in PECR referred to in the eighth blog instalment – sending marketing to individuals with whom the organisation has negotiated.
Whether an individual has entered into negotiations with an organisation will need to be considered on a case by case basis. In some circumstances, it will be relatively clear cut. For example, if a customer has requested a quote and negotiations have taken place between the customer and the organisation, it is likely that the organisation would be entitled under PECR to send electronic marketing to that individual without seeking consent. In some circumstances, if an individual makes an enquiry to an organisation (for example, via a website), the organisation may also be able to argue that the individual has entered into negotiations.
If you decide that the PECR test has not been met, you should only send marketing communications to the individual if you obtain their consent. If the PECR test has been passed, you will need to conduct a legitimate interest assessment to determine whether you are able to rely on legitimate interests to send the marketing communications under GDPR.
Either way, each marketing communication you send must include a clear opt out / unsubscribe option and you should determine at which point you will cease to send communications – if the negotiation took place only once, you will need to decide at what point you cease to treat the individual as someone with whom you have negotiated.
If you wish to conduct a marketing campaign, you should always seek legal advice to ensure the campaign doesn’t fall foul of GDPR or PECR, including nuances of the legislation that are not referred to in this blog.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.