New Direct Marketing Code of Practice: Challenges

Clause 79 of the UK Digital Economy Bill introduces a requirement for a statutory direct marketing code of practice. It's current wording makes it an amendment to the Data Protection Act 1998, but it will clearly have implications for compliance with GDPR.

If such a statutory marketing code is going to work, we must ask searching questions about 'real world' data practices and challenge ideas of right and wrong. For practitioners, we already know where the problems exist; we come face-to-face with them every week. For example, what’s the point of Article 6 1. (f) and Recital 47 “legitimate interests” if it is ALWAYS over-ridden by the data subject’s rights?

How would the code address the following?

"It's legal and acceptable to generate a database of email addresses by scraping and combining information available in the public domain e.g. name, surname, job tile and employer and sell it as marketing data. Do you agree?”

This is a common practice in the lead generation business which provides targeted email marketing lists based on industry sector or job title. The practice utilises information which is in the ‘public domain’ and which has often been placed there by the data subject.

‘Gut feel’, most people would say this is not legal, a breach of General Data Protection Regulation.

But ..

The Regulation makes lawful the processing of personal data under a (qualified) legitimate interest. Direct marketing IS a legitimate interest. The qualification requires the interests of the controller do not override the ‘interests or fundamental rights and freedoms of the data subject which require protection of personal data’.

Data does not need to be obtained from the data subject; Article 14 provides for this circumstance, ensuring all the rights available to the data subjects are provided for including any requirement for transparency and fairness.

If the provisions of Article 14 are carried out systematically and responsibly, is this not an acceptable balance of interests?

Let's make sure the code of practice gives us some examples of the use of legitimate interests in direct marketing.