EU laws may enforce ‘opt-in’ after all

ico-david-smith-370x229The Information Commissioner’s Office is urging companies to tighten up how they gain consent for direct marketing data, after conceding the proposed EU data protection reforms may require firms to gain “explicit” – opt-in – consent.
The “doomsday scenario” has been a major thorn in the side of DM firms since it was first mooted in the original draft EU Data Protection Regulation back in January 2012.
EU officials have been at pains to insist that there would be little change in the current state of affairs, meaning a simple opt-out box would suffice.
In April, an EU spokeswoman maintained that the industry would still be able to use “legitimate interest” as a way of processing data for marketing purposes. She added: “The Commission has not proposed to change this in its data protection reform proposals. Explicit consent is not mandatory for direct marketing under data protection directive 95/46/EC – consent is irrelevant in such cases. It will continue to be irrelevant.”
At the time, Opt-4 boss Jenny Moseley – a former DMA chairman – was not convinced. She said: “I don’t think opt-in is gone, I think it is still very much alive. Our take is that Viviane Reding will leave legitimate interests alone in exchange for opt-in everywhere else.”
And these fears could still be realised, according to the ICO. In a blog post about the latest moves in Brussels, deputy Information Commissioer David Smith (pictured) said: “While there will likely continue to be alternatives to relying on an individual’s consent to process their personal information, it’s clear that if your organisation is going to rely on consent then it will need to be ‘explicit’ to be valid.
“There’s still some negotiation to go before we see this high standard adopted, but it’s worth checking now how you are obtaining consent, and whether customers realise what they are consenting to.
“In the future you may also need to be able to prove that somebody has knowingly given you their consent, so start thinking now as to how you gather and document this.”

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