Data protection 2.0 - Electric boogaloo

Sneaking in under the radar of ongoing GDPR stories and Brexit madness, there’s a new data protection policy waiting in the wings of the EU parliament. The ePrivacy Directive.

“Another one!?!” I hear you cry.

As marketers, we’ve had to fine-tune our best practices to account for GDPR. The first step is not to panic, because the ePrivacy Directive will feel like an old friend (or maybe their non-identical twin).

The details

The ePrivacy Directive covers some key communication channels, data collection and data processing methods not covered within GDPR.

One of the most important changes for marketers is that this aligns B2B marketing with B2C marketing. Under the PECR, direct marketing can be sent to individuals within businesses without consent, but under ePrivacy you will need consent or permission for B2B marketing the same as you do talking to the general population.

Secondly, it specifically affects digital service providers such as Skype, WhatsApp, and Facebook Messenger, imposing the same rules around privacy that telecoms companies must follow. Currently, there’s nothing in law that stops digital providers from using personal data – such as who we talk to most and when we talk to them – to inform their advertising platforms and options.

The e-privacy regulation also aims to fill in the following gaps in GDPR:

Cookies: The rules around cookies are still a bit of a grey area under the ePrivacy Directive, but the aim is to implement functionality at a browser level to allow users to opt in or out of cookies. It does go on to clarify that cookies for analytics (with the aim of improving online experience such as remembering your shopping basket) are exempt.

Telemarketing: There will be a requirement for prior consent for all electronic communications including telemarketing, SMS and email under the ePrivacy Directive. It appears each country will be able to make up their own mind, however, so the UK may be able to stick to the TPS screening process. Callers may also be required to show their number or affix an ‘advertising’ prefix, but this isn’t set in stone yet.

Existing customers: Whilst you will still be able to soft opt-in current customers when marketing similar products and services, ePrivacy imposes a time limit of 12 months on this sort of activity.

Unfortunately, the saving grace of ‘legitimate interest’ currently isn’t mentioned in the proposed directive, which focuses heavily on consent. There are organisations, like the DMA, who are lobbying for legitimate interest to be included for consistency with the GDPR.

There is a big reason to comply with ePrivacy when it comes into place; it will invoke fines in line with GDPR (€20 million or 2% of turnover for the worst offenders).

What’s the impact?

Arguably the biggest changes to digital marketing professionals is the potential impact of the rules surrounding cookies. Making it a requirement that people consent to cookies, but more crucially leaving this is the hands of Google or Microsoft who provide the browser and own the advertising ecosystem, makes it very difficult to predict what will happen. I would argue that Google have been very keen to put the responsibility for data protection on the advertiser, so this could force their hand.

With the changes to social messaging platforms such as WhatsApp and Facebook Messenger, essentially giving the platforms less data on their users, advertising effectiveness could be impacted. But we’re not sure to what extent yet!

This should also be making B2B companies really sit up and think. Just because you’re dealing with a person in their work hours, it doesn’t mean they should expect a lower level of user experience than when they’re at home in front of their TV. GDPR has had a positive impact on B2C direct marketing, increasing engagement and interaction because users are more engaged and less bombarded. I predict ePrivacy will benefit B2B marketing in the same way. We will need to box clever!

The big question: why?

People have a fundamental human right to privacy, and currently the law doesn’t go far enough to protect that, especially regarding digital platforms (which are typically hard to keep up with in legislation). There is also the argument that the digital ecosystem and vast amounts of data are controlled by just a few global gatekeepers, such as Facebook or Google, and many data-privacy advocates are calling for more control, saying that so far they’ve been left to do whatever they want without appropriate checks and balances.

This links into the fundamental issue of trust. When we live so much of our lives online, it becomes such a valuable way of talking to consumers. It’s in the best interests of everyone to make this experience more positive, tailored and friendly.

At the moment we’re not sure when ePrivacy will come into play. The imminent EU parliament elections will most likely slow down this being introduced, but it most likely will apply from 2020. As yet, we’re not sure whether this will apply in the UK, as it’s dependent on our departure from the EU.

The best marketing agencies will help a company strike a balance between delivering on your company’s objectives whilst doing right by your customers too. If you’re looking for ways to prepare for ePrivacy, recover from the GDPR or ramp up the positivity in your digital marketing, our team are here for you.

Posted by:

Elanor Edwards

Digital Account Manager

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