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Consent or legitimate interest?

There is a major, ongoing debate and some confusion around consent and legitimate interest with regard to GDPR versus PUL and the Marketing Act. Peter Berg, CEO of Paloma, suggests that you as a direct marketer can use legitimate interest for B2B, but recommends that you actively obtain consent, as this improves the quality of the communication after May 25, when GDPR enters into force.

What does PUL and the Marketing Act say about valid consent and legitimate interest in direct marketing via electronic communication?

Answer: According to PUL and the Marketing Act, you need a valid consent from the data subject to market via e-mail, text messaging and/or via automated telephone sales to the data subject. Alternatively, you may have an in-depth professional relationship with the customer. You then have a legitimate interest and have the right to carry out direct marketing to that customer. My interpretation is also that relevant B2B mails based on the person’s professional role are also subject to legitimate interest, irrespective of consent or customer relationship. My recommendation is to always seek consent as this improves the quality of the communication.

I want to customise and personalise my e-mail marketing, for example adapt my newsletter to specific target groups. What applies?

Answer: Please see above

If I use some kind of web-based marketing program that uses different depths of customer data for profiling, segmentation or target group adaptation, how to I GDPR-safeguard this?

Answer: Be transparent and inform your existing and future customers about this and give them choices about how their data is managed.

Can you give me some concrete examples of how I do that?


1) Obtain your customers’ consent to receiving direct marketing from you and your company.

2) Inform them at the time of registration that your mailings after consent has been obtained will contain targeted offerings and personalised recommendations.

3) Add information about how you use the customer data, why you use it in this manner, the advantages of disclosing the personal data to you and the options available.

4) Offer the choice between targeted and unique content based on the data subject’s interests, and non-personalised content. That way, the data subject can still subscribe to your mailings, even if he or she does not, at the time of registration, consent to being tracked.