The data-driven marketing industry has breathed a collective sigh of relief over Experian’s successful appeal against the regulatory action which put the future of legitimate interests – a key tenet of direct marketing practice – in jeopardy.
The case centres around an enforcement notice issued by the Information Commissioner’s Office in 2020, following a three-year investigation into the data broking industry, with a focus on credit reference agencies.
The regulator claimed that the companies were trading, enriching and enhancing people’s personal data without their knowledge.
At the time, the ICO claimed that, while Equifax and TransUnion had changed their practices, Experian had not gone far enough.
The enforcement notice compelled Experian to make changes within nine months – and delete all “unlawful data” or risk further action for breaching GDPR. This included a potential fine of up to £20m or 4% of the organisation’s total annual worldwide turnover of $5.2bn, a whopping £208m.
Experian then launched an appeal at the First-Tier Tribunal (Information Rights). The ruling, which largely cleared Experian of any wrong-doing, was published yesterday.
In response, DMA CEO Chris Combemale said: “The Tribunal ruling reaffirms key principles for the use of legitimate interests for direct marketing, particularly that any balancing test must take into account the economic benefits and the benefits to the individual of receiving the relevant offers.
“The DMA agrees fully with the Tribunal’s judgment that receiving more relevant offers are unlikely to cause any distress or harm and are more likely to create benefits.”
One industry source added: “This case has been hanging over the industry for years. If it had gone the other way, it would have forced a complete overhaul of direct marketing practices. Thousands of organisations – from charities and financial services to retailers and consumer goods brands – use legitimate interests for their marketing activity. Many also use credit reference data for direct marketing purposes.
“The Tribunal ruling is a smack in the face for the ICO and it is difficult to see how it can come back from this with any appeal. Finally, the industry can keep calm and carry on.”
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