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The ICO has not yet provided guidance on when brands can use this justification, but direct marketing is explicitly stated as a legitimate interest in the text of the regulation. We need clear and consistent guidance and we need that as a matter of urgency if we are to meet the 2018 deadline. Mark Runacus, Direct Marketing Association However brands will always have to balance their own rights against consumers’, and the latter will always be favoured by the law. Using personal data for direct marketing will probably only be a legitimate interest if it’s absolutely necessary to do it and consumers would expect to be contacted, having given over their details. It’s not yet clear if there are therefore situations where brands can send marketing without having asked for consent, but Jason Cromack, executive director of MyLife Digital, suggests for example that he believes “legitimate interests will work very well with charities, because even though you might only talk to them once every six years it doesn’t mean you don’t support them”. Once the ICO’s guidance becomes clear, marketers will need to think carefully about which legal basis – consent or legitimate interests – is the better one to to justify the use of personal data. If you ask for consent first and consumers refuse, it’s highly unlikely you can claim a legitimate interest. Not all brands see the GDPR as a source of worry and confusion. Sherine Yap, global head of CRM at Shell, says: “From my perspective, because we’ve taken this fairly vigilant approach, I don’t see a direct impact, not tangibly. “So we’re in a very fortuitous position where we don’t have to rework a lot of what we’ve got or lose a lot of what we’ve got. We have to validate a lot of the permissions and a lot of the consent, but I actually think that’s going to be a bonus because for me we don’t have a lot of dead weight in the databases.” Sky group head of data protection and privacy Nina Barakzai believes the GDPR should require “just an extra few tweaks” if businesses have been operating a transparent and customer-centric data policy until now.

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