Direct marketing rules and exceptions under the GDPR

Direct marketing includes text messages (SMS) and emails that a customer receives from a product or service provider.

But activities of direct marketing may include multiple steps:

• collecting personal data from potential customers,
• creating profiles about those potential customers and their preferences,
• and then sending personalized communications to them.

As a general rule for direct marketing, the company needs consent from a customer. However, there are several exceptions when it’s allowed to send emails to the customers without asking for consent.

The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. But it’s not so easy. Direct electronic marketing is currently regulated under the ePrivacy Directive, which generally requires opt-in consent before engaging in such activity. This means, that in most cases, even if you are relying on legitimate interests, the ePrivacy Directive would still require consent.

However, there is an exception—marketing emails may be sent on an opt-out basis if the recipient’s details were collected “in the context of the sale of a product or a service,”(Directive 2002/58/EC, Article 13(2).). Please bear in mind that this exception has been implemented differently by the EU member states and some differences may apply, especially in the case of B2B communication.

In the case of B2B communication, a company representative can be contacted for direct marketing purposes for business-related products or services through electronic mail without their prior consent but only in the context of the position they hold. Therefore, there are additional exceptions for B2B direct marketing rules.

Article 21 of the GDPR states that “where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing” and that “where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes” even if opt-in consent is not required before sending marketing emails, the GDPR requires that the recipient always be provided with an opportunity to opt-out of receiving such emails.

The following table will provide you with a bit more structured view of possible legal bases for direct marketing activities under the GDPR and ePrivacy Directive.