ePrivacy fears around B2B marketing opt-in averted

The European Commission has now published its proposed text to replace the existing ePrivacy Directive, which is set to become a new EU regulation meaning it will apply equally in all member states. In late December 2016, the DMA obtained a leaked copy of the Commission’s proposals and was deeply concerned about the outcome of the proposed changes.

This leaked version stated that B2B marketing via electronic channels would require a prior opt-in consent. This would mean any marketer wanting to email corporate employees would require opt-in consent, a huge change and challenge for the sector.

The EU Commissioner for the Digital Economy and Society, Andrus Ansip, announced yesterday that the final version of the Commission text would soften many of the clauses that could have had a significant negative impact on B2B marketers.

“The Commission is proposing new rules on privacy and protection of electronic communications data for people and business,” Commissioner, Andrus Ansip, said: “Our proposal builds on the gold standards of the General Data Protection Regulation agreed last year. Our new rules will not only apply to traditional services like voice or SMS, but also to internet-based communications services or future services that allow any type of communication.”

Instead of requiring consent for B2B electronic marketing there is a provision for member states to ensure that companies’ legitimate interests are adequately protected. This means ensuring that corporate employees are able to easily object to receiving direct marketing.

Member states will need to create their own domestic legislation allowing voice-to-voice unsolicited telemarketing calls. If they do not then opt-in consent would be needed. The DMA will be lobbying to ensure that the UK maintains its opt-out approach to telemarketing.

The new text confirms the extension of ePrivacy rules to any marketing channel making use of internet-based services. It also includes services like Skype or WhatsApp. The existing customer soft opt-in for email marketing will remain for business and consumer marketing.

One thing we must all bear in mind is also that this is only the beginning of the legislative process as the EU Parliament, the directly elected body, will have a chance to make amendments to the text, as will the EU’s Council of Ministers, which represents the 28 member states.

The General Data Protection Regulation (GDPR) went through the same process of dialogue between the Commission, Council and Parliament and took seven years to complete. The proposed ePrivacy text says that the new Regulation will apply from 25 May 2018 to match GDPR implementation. The text did remove a mention of a six month grace period mentioned in the leaked text. This emphasises how important it is for the Commission to have the new ePrivacy rules working in tandem with the GDPR.

This timeline also means that UK will not have left the EU and as with the GDPR will therefore apply in full to the UK. However, the rules could be repealed or amended once the UK leaves the EU but that would a long process.

Ultimately, the draft of the ePrivacy Regulation leaked late last year included some changes to the rules that caused serious concern across the B2B marketing industry. If they had gone ahead, these alterations to the law could have had a profound and negative effect on the UK economy, so we welcome the latest announcement from the European Commission.