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GDPR. Legitimate interest and Emailmarketing

The legitimate interest is an unknown figure by the Marketing departments or managers and is something worth to explore, since it allows to send commercial communications without the consent of the recipient.

If we focus on email marketing campaigns in the B2C sector and consider email as personal data, we must consider that the GDPR allows up to six legal basis to process such personal data. These six cases are completely independent, so if one is fulfilled, we are fully GDPR compliant. Among these legal basis we find both consent and legitimate interest (in addition to 4 other ones).

It is well known that with the entry into force of the GDPR, back in May 2018, our inboxes were filled with emails from companies requesting consent to continue sending advertising or commercial communications. Many of these companies did not really explore the legitimate interest.

When can legitimate interest be used in an email marketing campaign?

As we say, if the assumptions that we collect below are met, the rule of legitimate interest will be applicable, therefore, the express consent of the recipient is not necessary to send commercial campaigns by email.

These are the conditions:

  1. The recipient must be a current client of the company that sends the commercial communication. It is important to say here that the Spanish Data Protection Authority (AEPD) requires that this commercial link be in force. Therefore this rule cannot be applied in the case of former clients or, of course, in the case of leads.
  2. The advertising must be about similar products or services to those that the client had acquired or contracted in the first place. This being a somewhat subjective description, the AEPD reminds us that this similarity must be according to the criteria of the recipient and not of the issuer of the advertisement.
  3. Advertising can only be from the same company with which it was originally contracted or purchased. This excludes using legitimate interest to send advertising of collaborators, group companies or similar.
  4. The option to unsubscribe in each commercial communication must be given.
  5. Finally, when you collect customer data, explain very well at your Privacy Policy what you are going to do with them and clearly justify this legitimate interest.

ICO (British Data Protection Authority), explained very well the use of the legitimate interest in marketing. See link here.

If you need legal advice for a GDPR compliance Email Marketing campaing in Spain, please contact us.

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