Blog » DO NOT SCORE OWN GOAL WITH GDPR – DO YOU ALWAYS NEED CONSENT?
DO NOT SCORE OWN GOAL WITH GDPR – DO YOU ALWAYS NEED CONSENT?
28 May 2018
Do you need re-confirmation of client consent already given in each case because of the GDPR? Before sending thousands of e-mails to clients in your database to obtain their consent again, read our article to avoid throwing the baby out with the bath water!
During last week, as the D-Day of GDPR has been coming closer I received dozens of e-mails from on-line shops, hotels, travel agencies, consultancy firms and the like where I had on-line client account in the past years.
Needless to say, the second approach was more attractive for me. In case of the first type of e-mail, I thought twice whether I really need to maintain my on-line client account before clicking and renewing my consent.
Surveys show that I am not alone with this, and providers who are sending e-mails seeking re-confirmation of consent because of GDPR, face a very low response rate from their clients.
So the question is, which approach should you choose if you would like to be GDPR compliant?
Consent as legal basis
Those, who are seeking the re-confirmation of the consent already given are either unaware of the fact that consent is only one out of the six (6) other legal bases allowed by the GDPR that can serve as valid ground for processing personal data, or they interpret the Regulation too strictly in my opinion.
These data controllers, who are founding the data processing on the consent of data subjects as a legal basis, can easily score an own goal.
Given that “consent” means an activity from the data subject, a not answering customer “says no” to the data processing. This means that you have to stop the sending of any other on-line material, and you shall delete the customer’s on-line account.
Are you sure you want to let this happen?
Legitimate interest as a legal basis
Besides “consent” there is another legal basis which can be a valid ground for processing personal data: the legitimate interest of the data controller company.
This can be a valid ground for data processing, if the data processing is really necessary for the company to pursue its legitimate interest, and these interests are not overridden by the data subject’s fundamental rights.
Consent vs Legitimate interest
It is true that seeking consent is simply and you can do it by sending e-mails, without the involvement of a data protection expert.
At the same time, choosing the legitimate interest as a legal basis means that you have to carry out and document a so-called legitimate interest assessment test which is a mission impossible without a lawyer or other data protection expert.
However, the benefits are clear: in case of seeking re-confirmation of consent, you are risking the loss of the vast majority of your client database.
But in case of you opt for the smarter approach, and with the help of a lawyer or data protection expert, you are able to find a legitimate interest, which permits you to handle the client’s personal data, without risking the client’s fundamental rights, then you will have to simply notify your clients about the change, but you do not need their “consent” again.
Instead scoring an own goal with GDPR, before sending e-mails to your customers obtaining again of their consent, consult a lawyer specialized in data protection law to find the most appropriate way to comply with GDPR and not lose your client database.
ONLINE SALE OF MEDICINAL PRODUCTS WITHOUT BORDERS? LUXEMBURG RULED
Cross-border online sale of medicinal products is a recurring issue before the Court of Justice of the European Union. This is no coincidence, as trade in medicines is a strictly regulated area in all Member States, which can easily conflict with the EU principle of freedom to provide services, and in the end, the "price" of excessive national restrictions is borne by the consumers. In our article, we summarize the recent ruling of the Court of Justice of the European Union on the limitation of the principle.Read more »
HOW REPORTING OF EMPLOYEE-TRAININGS HAS CHANGED FROM SEPTEMBER 2020 IN HUNGARY?
From September 2020 the rules, which regulate the status of the adult educators and the organisation of adult educations have changed. There are significantly more educations, which are considered as adult education and performing an adult education entails a lot more obligation. The changes affect almost every employer who organises certain kind of educations for its employees. We summarize the most important changes concerning the adult education.Read more »
LUXEMBOURG RULED: MESSI DRIBBLED PAST EVEN THE EUROPEAN TRADEMARK OFFICE
Messi hit the legal news again, this time not because of his tax issues. In September, the match between the EUIPO and the world-famous football player, which was ongoing since 2011, finally ended. Messi won the match, as the European Court of Justice ruled that because of his significant reputation, his name can be registered as a trademark despite the fact that it is similar to several earlier trademarks, which is otherwise a ground for exclusion. In our short article, we summarise the details of the case and the legal significance of the decision.Read more »