In Part 1 we covered raising awareness, data audits and privacy notices. While in Part 2 we covered how GDPR deals with individuals’ rights including subject access requests and legal basis. In this week’s installment, we will be reviewing consent, marketing to children and data breaches.
Under the Privacy and Electronic Communications Regulations, email marketing is consent-based. GDPR however, more fully defines how to get consent with the following stipulations:
- Must be freely given – giving people genuine choice and control over how you use their data and “unbundling” consent from other terms and conditions; in other words, consent cannot be a precondition for a service unless it necessary to deliver the service.
- Specific – clearly explain exactly what people are consenting to in a way they can easily understand (i.e. not with a load of legal mumbo jumbo) and in a way that does not disrupt the user experience.
- Informed – clearly identify yourself as the data controller, identify each processing operation you will be performing, collect separate consent for each unless this would be “unduly disruptive or confusing”, describe the reason behind each data processing operation, and notify people of their right to withdraw consent at any time.
- Unambiguous – it must be clear that the person has consented and what they have consented to with an affirmative action (i.e. no pre-checked boxes). Therefore, silence would not be a valid form of consent.
In the last instalment, we talked about deciding on the legal basis you will use to process your marketing data. Consent is not your only option. That said, it is always a good idea to know the source of all of your data, how that data flows through your various systems and what consent you have for the processing of that data. The ICO has published detailed guidance on consent and has produced a consent checklist to help you review your current practices.
For the first time, the GDPR specifically calls out the rights of children and offers special protection for their personal data in the digital world. If you offer what the GDPR calls “information society services” to children and you rely on consent to process their data, you may have to get the permission of the parent or guardian before processing that child’s data. The GDPR set the age at which a child can consent for themselves at 16 but the UK may lower this to 13. One interesting thing to note is that the parent or guardian’s consent expires when the child reaches the age at which they can give consent, so you will have to refresh their consent at that milestone.
9. Data Breaches
The GDPR makes it the responsibility of all organisations to issue notifications for certain types of data breaches. You will have to notify the ICO if the breach is likely to impinge on the rights and freedoms of individuals such as financial loss, loss of confidentiality or significant economic or social harm. If this risk is high you may also have to notify the individual directly. Now is the time to think about your policies and procedures for identifying and managing data breaches.
So far, we have given you a lot to think about and we hope you have gotten started. Check back next soon for our last instalment where we will look at privacy by design, data protection officers and international considerations.