Now that you’ve written those GDPR policy documents and tackled your corporate mountain of old data, you might be ready to leave the legal stuff to the lawyers and get back to marketing, comms and sales. But maybe you’ve read something about PECR and some people on LinkedIn are still insisting that b2b email marketing will be over in May 2018?
What Is PECR?
PECR is the Privacy & Electronic Communications (EC Directive) Regulations 2003 which governs email marketing. As an EU Directive, the UK can choose how to interpret PECR. Crucially the UK allows businesses the freedom to email other businesses on business matters without consent. Most EU countries do not allow b2b email marketing without consent.
The EU wants to update PECR and upgrade it to a Regulation (the ePrivacy Regulation or ePR) which means that all EU nations must follow the rule to the letter and there is no flexibility on its interpretation. The European Parliament signalled its desire to update it before May 2018 and bring in the new ePrivacy Regulation on 25 May 2018. As this would bring the UK into line with the EU and likely outlaw the sale of all third party b2b mailing lists, Electric Marketing wrote to a number of government ministers and departments asking for more information.
Five weeks later, the Department of Digital, Culture, Media & Sport has emailed a reply; The Rt Hon David Davis MP Minister For Exiting The European Union, passed my letter to them.
EU Plans To Update PECR
The Department For DCMS states that is pretty much impossible for the EU to stick to their timetable of introducing ePR, the update to PECR legislation in May 2018. It points out that while the European Parliament has agreed its policy, all 28 member states are yet to officially state their position on the proposal and the final text of the ePrivacy Regulation is yet to be agreed by the European Parliament, Council and Commission.
“Our stand is that the quality of the text must be prioritised over speed”
The email from the DDCMS says that the UK government is pushing for a workable timetable for implementation, which I take to mean a two year period for business to prepare for the new ePrivacy Regulation.
What Is The UK Government’s Position On The PECR Update?
The email goes on to say
“In relation to unsolicited communication (spam emails and unsolicited calls), the UK’s position is to ensure the provisions for marketing communication are aligned with the high standard set in our domestic regime (‘PECR’) without compromising our regulator’s ability to enforce against such communication. We also aim to tighten the definition of direct marketing communications to avoid users needing to consent every time they load a webpage with ads. Elsewhere, the UK’s position is to maintain the level of flexibility for Member States in the current law.”
I believe that means the UK’s position is to continue to allow b2b email marketing without consent. But I am quoting the email from the ministerial support team at the Department for Digital, Culture, Media & Sport verbatim so that you can come to your judgement.
When Will The New PECR Regulation (ePR) Come Into Force?
Perhaps more pertinent is the question of timing; the EU needs to agree a text and pass the update to PECR before the UK leaves the EU on 29th March 2019 for the updated Regulation to become part of the European (Withdrawal) Bill and to pass into domestic legislation. If the EU passes the Regulation, it is likely that there will be a period of implementation which may be two years as with GDPR. If the ePrivacy Regulation is not passed before the UK leaves the EU, we will have to see what sort of Brexit deal is struck with regard to implementing new EU laws in the UK post-Brexit.
What Is The Government’s Policy on Data Protection Post-Brexit?
For more information, read this Government publication Future Partnership.
Electric Marketing will keep a close watch on the progress of PECR throughout 2018 and into 2019.
Our view is that the implementation of PECR reform seems a way off yet. But beyond 2020, the future for business-to-business digital marketing is not certain.
GDPR Signals The Death Of The Opt-In Mailing List: How Can You Still Use B2B Email Marketing In 2018?
The new GDPR (General Data Protection Regulation) rules that if your mailing list is opt-in, consent to opt-in to receive marketing communications must be be “freely-given, specific, informed and unambiguous”.
It is no longer permitted to use mailing lists on the basis of the old opt-in wheeze of a series of double negatives to leave a box unticked agreeing to be contacted by “the company’s marketing partners”. The ICO’s (Information Commissioners Office) guidance on interpreting GDPR specifically rules out pre-ticked boxes and states that any third party using a mailing list must be named when the consent is given.
From May 2018 a mailing list can only be opt-in if a person has ticked a box next to a statement that specifically names your company. So your client list and any one who has signed up to receive info from your company on your website are opt-in lists. Third party opt-in lists are pretty much out after May 2018 and any company or list broker promoting opt-in mailing lists is not up to speed on GDPR.
The good news is that ICO guidance also states that
You don’t always need consent. If consent is too difficult look at whether another lawful basis is more appropriate.
Electric Marketing mailing lists are compiled and used on the lawful basis of “legitimate interest“. If you have a business interest in contacting a person, you may contact them without gaining their prior consent to do so. This applies across mailing, telemarketing and email, with some key restrictions.
There are no restrictions on postal mailing. Direct marketing with envelopes and stamps is swinging back into fashion. It is expensive compared to email marketing but compares well with other forms of digital advertising.
Business-to-business telemarketing is restricted to companies which have not added themselves to the CTPS register. All Electric Marketing lists do contain the phone numbers of CTPS registered companies and they are marked up as CTPS. You can buy mailing lists excluding CTPS registered companies. It is worth noting that companies must renew their registration each year so a company’s CTPS status can change over time. You can check a company’s status by putting their phone number into our free CTPS Checker.
Email marketing for business-to-business marketing is restricted by your own list of individuals who have unsubscribed from receiving emails from your company. This is a key point of difference between consumer email marketing which definitely does require consent. The reason for the difference is that email marketing is governed by a different EU directive, known as the Privacy & Electronic Communications Regulations (PECR). PECR states that it is permitted to send emails offering business services to business people at their business email addresses, but if they ask you to stop emailing them, then you must remove them from your list and must not email them again.
So the opt-in mailing list is dead. But email marketing for business-to-business communications lives on.