Articles

GDPR: The marketeer in the privacy minefield

GDPR: The marketeer in the privacy minefield

GDPR: The marketeer in the privacy minefield

23.01.2017 BE law

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.

To read more about this series of articles (and the articles that were published previously), please click here

Team

Related news

25.10.2018 BE law
Ignace Vernimme and Michiel Van Roey speak on IP rightsduring Agoria's Research & Standardization Event

Speaking slot - On Thursday 25 October, Agoria's Regulatory and Standardization Expertise Center organizes its 5th information day about regulations and standards for topics including international trade, privacy and contract law, transport, Internet of Things and blockchain, eHealth, ... at regional, national and European level.

Read more

10.10.2018 NL law
Ongevraagd advies Raad van State: normering van geautomatiseerde overheidsbesluitvorming

Short Reads - Op 31 augustus 2018 heeft de Afdeling advisering van de Raad van State (hierna: "Afdeling advisering") een 'Ongevraagd advies over de effecten van de digitalisering voor de rechtsstatelijke verhoudingen' betreffende de positie en de bescherming van de burger tegen een "iOverheid" uitgebracht. Het gebeurt niet vaak dat de Afdeling advisering zo een ongevraagd advies uitbrengt. Dit onderstreept het belang van de voortdurend in ontwikkeling zijnde technologie en digitalisering in relatie tot de verhouding tussen de overheid en de maatschappij.

Read more

23.08.2018
ECJ: Facebook fan page administrator is a joint data controller

Short Reads - On 5 June 2018, the European Court of Justice ("ECJ") decided on several preliminary questions that were raised in an administrative proceeding between the German Data Protection Authority ("GDPA") and Wirtschaftsakademie Schleswig-Holstein GmbH ("Wirtschaftsakademie"), a German educational services provider that offers its services through a Facebook fan page. In its decision, the ECJ held, among other things, that Wirtschaftsakademie qualifies as a data controller ex Article 2 under d Directive 95/46/EC[1] ("Privacy Directive").

Read more

12.10.2018 NL law
Tim Berners-Lee's Solid proposal: the future of data traffic?

Short Reads - The General Data Protection Regulation (GDPR) aims to strengthen the rights of individuals in respect of their personal data. Although this aim has been achieved to a certain extent, the fundamental framework of the way personal data is processed remains unchanged. Companies are still able to use large amounts of user data, in many cases without even obtaining their consent. Tim Berners-Lee, the inventor of the World Wide Web, has announced his plans for a decentralised web, in which users remain in control of their personal data.

Read more

07.08.2018 NL law
General Data Protection Regulation comes into effect

Short Reads - On 25 May 2018, the European Union's General Data Protection Regulation (GDPR) came into effect. The GDPR replaces the EU's prior directive governing the processing and transfer of personal data, which was in place since 1995. As a regulation, the GDPR is directly applicable in all 28 EU member states and thus removes the need for national implementing legislation. However, the GDPR allows member states discretion in certain areas, as a result of which national legislation may still be implemented. In the Netherlands, the GDPR Implementation Act came into effect on 25 May 2018.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring