Many firms have the required consent already; others don’t have consent to send a request

The vast majority of emails flooding inboxes across Europe from companies asking for consent to keep recipients on their mailing list are unnecessary and some may be illegal, privacy experts have said, as new rules over data privacy come into force at the end of this week.

Many companies, acting based on poor legal advice, a fear of fines of up to €20m (£17.5m) and a lack of good examples to follow, have taken what they see as the safest option for hewing to the General Data Protection Regulation (GDPR): asking customers to renew their consent for marketing communications and data processing.

But Toni Vitale, the head of regulation, data and information at the law firm Winckworth Sherwood, said many of those requests would be needless paperwork, and some that were not would be illegal.

“Businesses are not required to automatically ‘repaper’ or refresh all existing 1998 Act consents in preparation for the GDPR,” Vitale said. “The first question to ask is: which of the six legal grounds under the GDPR should you rely on to process personal data? Consent is only one ground. The others are contract, legal obligation, vital interests, public interest and legitimate interests.

“Even if you are relying on consent, that still does not mean you have to ask for consent again. Recital 171 of the GDPR makes clear you can continue to rely on any existing consent that was given in line with the GDPR requirements, and there’s no need to seek fresh consent. Just make sure that your consent met the GDPR standard and that consents are properly documented.”

In other words, if the business had consent to communicate with you before GDPR, that consent probably carries over, and even if it doesn’t carry over, there are five other reasons a company can cite for continuing to process data.

What’s more, Vitale said, if the business really does lack the necessary consent to communicate with you, it probably lacks the consent even to email to ask you to give it that consent.

“In many cases the sender will be breaching another set of regulations, the Privacy and Electronic Communications Regulations, which makes it an offence to email someone to ask them for consent to send them marketing by email.”

The lack of understanding around when and why consent is needed under GDPR has prompted the Information Commissioner’s Office to try to resolve some of the “myths” of GDPR.

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