Businesses are increasingly relying on data, which are progressively at the very core of their marketing activities. Some brands gather and retain perpetually thousands of clients’ data to improve their services or for implementing direct advertising. In addition, these data are very often transferred by businesses to commercial partners without clearly informing the data subjects about it.
The GDPR imposes additional obligations on marketeers and aims at increasing the amount of control a data subject has over what is done with the personal data relating to them.
Firstly, the processing of personal data for marketing purposes will require the data subjects’ unambiguous consent, i.e., a clear, specific, informed, and freely given positive affirmation that they agree with such use of their data. This implies the need for companies to implement proper “opt-in” mechanisms, for instance, through the data subject’s ticking a box actively. Indeed pre-ticked boxes, inactivity, and silence will no longer be considered valid consent. In addition, data subjects must be given the right to object to the processing of personal data relating to them, including profiling, to the extent it is related to direct marketing. In such case, the data may no longer be processed for such purposes.
The GDPR also provides for the empowerment of data subjects through the creation of new rights, among which the right to be forgotten and the right to data portability. As to the former right, the GDPR codifies it for the first time following the European Court of Justice’s recognition of it in the so-called Google Spain case, which was rendered in 2014. This “right to erasure” now obliges all data controllers to delete any personal data, at the request of the data subject, without undue delay, if the data is no longer needed, if the data subject objects to the processing, or the processing was unlawful. According to the lawmakers, this right is relevant especially where underage data subjects have given their consent, for instance, on the internet and they later wish to have their personal data relating to them removed. However, such right is not absolute, and the data controller could refuse this erasure if, inter alia, the retention of the data concerned is necessary for the exercise of the right of freedom of expression and information, for compliance with a legal obligation, or for public interest in terms of public health.
Secondly, the GDPR strengthens the existing “right to access” one’s personal data by creating a “right to data portability”, allowing the data subject to receive the personal data concerning him or her and to transmit those data to another data controller directly. This right applies if the initial processing is based on the data subject’s consent and is carried out by automated means (e.g., songs listened to via a music streaming service or books purchased from an online bookstore). This only concerns personal data relating to the requesting party, and which he or she has provided to a data controller. This latest condition is broadly construed by the Article 29 Data Protection Working Party (“WP 29”), which considers that it covers all data actively and knowingly provided by the data subject and also data that are “provided” by the data subject by virtue of the use of a service or a device. This includes, for instance, a person’s search history, traffic data, and location data.
Data controllers must answer this query in a structured, commonly used, and machine-readable format. According to the WP 29, data controllers should offer a direct download opportunity for the data subjects, and should also allow data subjects to directly transmit the data to another data controller, for instance, by making an application programming interface available.
Finally, data subjects must be clearly informed about all aspects of the processing, about the origin of every single piece of data gathered about them, and about each purpose for which this data is being processed. Moreover, the right to object to the use of data for marketing purposes must be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.
The GDPR embodies the emerging trend to give back to data subjects the control over data gathered and processed about them by marketeers. Moving forward, businesses will have to ensure transparency of their data practice and should, before the GDPR enters into force, keep track of their clients’ database and trace the way they have been constituted in order to make sure that such data can legally be retained on the basis of a valid consent given by the persons concerned. Also, as regards the new right to data portability, they will need to retrace on what grounds the data were obtained and start implementing tools that are able to answer data portability requests. Companies must also remember that the proportionality principle obliges them not to keep data for longer than reasonably necessary for the purpose they pursue. Finally, companies should refrain from using such data for making automated decision, i.e., a measure solely based on automated processing, and which produces legal effects concerning a data subject or significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention. The GDPR will inevitably change the way business handle data and certainly also open the way to new services in the digital single market through easing data switches between different service providers by the intermediary of the data subject himself or herself.
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