You Are Going To Be Forgotten . . . If You Live In Europe!

The consultation period for proposed changes to the European Data Protection Regulations now has only 4 months to run. I wrote on the potential impact of these proposals previously, demonstrating that in Europe Direct Marketing stands to lose approximately £350 billion per annum if implemented.

Despite efforts to raise awareness, as an industry we still appear to be sleepwalking toward disaster. In recent research by DMA (UK) 60% of senior managers at brand, agencies and suppliers responded that they're 'not aware' of the possible impact of the Regulation on what they do.” To increase awareness, the DMA hosted an event on 08th February 2013, and I’ve summarised the key talking points.

Firstly, it’s probably not surprising that we have reached this point. Richard Beaumont (Head of Service Development at Cookie Collective LLP) quoted the following:

  • 43% of UK consumers believe mistrust of businesses using their personal data is increasing.
  • 91% avoid businesses they consider not protective of online privacy.
  • The most popular add-on for Firefox is its ad-blocker.
  • 71% of UK users would use “Do Not Track” for search if available and easy to implement.

However, in his keynote address the Information Commissioner, Christopher Graham, said that the proposals are over-prescriptive. This is partly because unlike in the US where data protection is a consumer issue, in the EU it is a human rights issue. His key thoughts were:

  • While we do need effective rights for individuals, we also need consistency across the EU. The current proposals are unnecessarily burdensome in terms of the legislative detail that they represent.
  • Responsible online brands already recognise the importance of self-regulation. Consumers already have an increasingly sophisticated view of online marketing, being well-disposed to brands that treat them like grown-ups, and ill-disposed to those employing sharp practices. 
  • Marketers should actively engage with their Euro MPs to ensure their voices are heard. He cautioned that the message should be one of compliance not defiance – in setting out their stall, marketers should engage from the standpoint of good corporate citizens.

Mathilde Fiquet (EU Legal Affairs Advisor, FEDMA) and Caroline Roberts (Director of Public Affairs, DMA UK) considered the potential impact of the proposals. They recognised the existing legislation is outdated – it wasn’t designed for an online world, and there have been serious inconsistencies in the way it has been implemented across the EU. Nonetheless, the proposed revisions have major implications for DM practitioners:

  • Potential opt-in for all channels
  • Potential ban on profiling
  • Potential ban on list trading
  • A requirement for explicit consent
  • A right to be “forgotten”

All of these points have significant implications for email marketing. While they will certainly provide consumers with greater protection of their personal data, email program effectiveness could be significantly compromised. For example:

  • A ban on profiling would impact targeting and segmentation – an obvious best practice, and one of the fastest-changing areas of email marketing presently.
  • A right to be forgotten would make it difficult to honour previous opt-out requests, because you wouldn’t be able to maintain subscriber history!

At a broader level, FEDMA and the DMA concur, saying a fairer balance is required. They believe that in their current form the new proposals will stifle innovation, increase costs, and present unnecessary obstacles to growth – particularly for SMEs. They have been lobbying the government with the following messages:

  • Data is essential for economic growth
  • Transparent and responsible use of data is a vital business practice
  • The proposed regulations are bad for business
  • We need a proportionate regime that recognises not all data is the same.

These efforts have clearly had some success, because the UK government has stated it would like to see a more risk-based approach, with less prescription, greater scope for self-regulation, and some exemptions for SMEs. The Ministry of Justice also takes issue with the EU Commission’s estimated savings of €2.3 billion, arguing the changes will actually introduce additional costs to businesses.

Chris Combemale, Executive Director of the DMA, concluded with a rallying call for all DM stakeholders to lobby their MPs and Euro MPs to ensure their voices are heard. The DMA has prepared a lobbying toolkit. In using it he provided the following advice:

  • Send a personal letter, not a template
  • State your business view – how do you rely on data, and what is the impact if removed?
  • Ask them to fight for the fair interests of your business.

Return Path’s own Richard Gibson¸ current chairman of the DMA’s Email Marketing Council, added ““To anyone that was in attendance at this event The Information Commissioner made it very clear in terms of changing perceptions with the legislators; compliance is the way to go and not defiance, which is why the campaign and the rallying cry from the DMA is all the more imperative”.

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