What permissions are required for a marketer to send an email marketing message to a consumer in the EU?
Answer(s): A
: Under the GDPR, email marketing requires explicit and unambiguous consent from the recipients, meaning that they must actively agree to receive marketing communications, and the process for obtaining this consent must be clear and transparent. A prior opt-in consent is the most common and reliable way to demonstrate compliance with this requirement, as it involves a positive action from the data subject, such as ticking a box, clicking a button, or filling a form. A pre-checked box, a notice, or an opt-out option are not sufficient to obtain valid consent, as they do not indicate a clear expression of the data subject's will. However, there is an exception to the consent rule for existing customers, known as the "soft opt-in". This means that a company can send email marketing messages to its customers without prior consent, if the following conditions are met:The company obtained the customer's contact details in the course of a sale or negotiations for a sale of a product or service;The company only sends marketing messages about its own similar products or services; The company gives the customer a clear opportunity to opt out of receiving such messages both when first collecting the details and in every subsequent message.
GDPR Article 4(11), GDPR Article 6(1)(a), GDPR Article 7, GDPR Recital 32, GDPR Recital 47, GDPR for Marketing: The Definitive Guide for 2023 - SuperOffice, A Guide to GDPR Compliance for Email Marketers in 2023https://www.forbes.com/sites/forbescommunicationscouncil/2018/06/27/what-gdpr- means-for- email-marketing-to-eu-customers/#64020aa8374a
Under what circumstances might the "soft opt-in" rule apply in relation to direct marketing?
Answer(s): B
The "soft opt-in" rule is an exception to the general requirement of obtaining consent before sending electronic mail marketing to individuals. It applies when the following conditions are met12:the sender has obtained the contact details of the recipient in the context of the sale or negotiations for the sale of a product or service to that recipient; the sender only sends direct marketing relating to its own similar products or services; and the recipient has been given a simple opportunity to refuse or opt out of the marketing, both when the details were initially collected and in every subsequent message. The option B matches these conditions, as it implies that the individual has shown an interest in buying a product from the sender, and that the sender can use the individual's details to send marketing about similar products, as long as the individual can easily opt out. The other options do not qualify for the "soft opt-in" rule, as they either involve no consent, no prior relationship, or no opt-out mechanism.
Electronic mail marketing | ICO, Direct marketing rules and exceptions under the GDPR
What should a controller do after a data subject opts out of a direct marketing activity?
Answer(s): C
According to Article 21 of the GDPR, the data subject has the right to object at any time to the processing of his or her personal data for direct marketing purposes, which includes profiling related to such marketing. When the data subject exercises this right, the controller must stop processing the personal data for that purpose, unless it can demonstrate compelling legitimate grounds for the processing that override the interests, rights, and freedoms of the data subject, or for the establishment, exercise, or defense of legal claims. The controller must also inform the data subject of this right before the first communication with him or her, and in a clear and separate manner from other information. The controller must also provide the data subject with a simple and effective way to opt out of receiving direct marketing communications, such as an unsubscribe link or a STOP text message. The controller must respect the data subject's choice and refrain from sending any further direct marketing messages of the relevant type (e.g., email, phone, post, etc.) to the data subject, unless he or she opts in again. The controller does not need to delete the personal data of the data subject who opts out, unless the data subject also requests the erasure of his or her data under Article 17 of the GDPR, or the data is no longer necessary for the purposes for which it was collected or processed. The controller may also retain some minimal information about the data subject (such as name and email address) to ensure that his or her opt-out request is honored and that he or she is not contacted again for direct marketing purposes. The controller must also ensure that any third parties to whom it has disclosed the personal data of the data subject for direct marketing purposes are informed of the opt-out request and comply with it, unless this proves impossible or involves disproportionate effort.
Direct marketing rules and exceptions under the GDPR, Direct marketing and privacy and electronic communications, Marketing and advertising: the law: Direct marketing, Direct Marketing - What you need to know about direct marketing
How is the GDPR's position on consent MOST likely to affect future app design and implementation?
The GDPR requires that consent must be freely given, specific, informed and unambiguous. This means that app developers must provide clear and transparent information about the purposes and legal basis of the data processing, and allow users to choose which types of processing they agree to and which they do not. For example, users should be able to consent separately to different types of cookies, such as functional, analytical or marketing cookies. Users should also be able to withdraw their consent at any time as easily as they gave it. Therefore, app design and implementation must take into account these requirements and provide users with granular and user-friendly consent options, rather than relying on pre-ticked boxes, implied consent or default settings.
1 Art. 4 (11) and Art. 7 GDPR Definitions and Conditions for consent - General Data Protection Regulation (GDPR)2 Guidelines 05/2020 on consent under Regulation 2016/679 - European Data Protection Board3 How To Make Compliant GDPR Consent Forms (With Examples) - Termly.
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