New regulations set to transform digital communications

Gill Hall, Square One Law’s new managing partner and head of its commercial team, explains how following on from GDPR, the forthcoming e-Privacy Regulation will transform the way business-to-business marketing and sales activity is undertaken.

Gill Hall is a highly experienced commercial lawyer with more than 20 years’ experience in IT law.

She explains that after the EU’s General Data Protection Regulation (GDPR) came into effect on May 25, 2018, close on its heels is another regulatory change which will change the way marketing and sales teams communicate with customer bases.

Businesses and marketing professionals need to understand that GDPR compliance is not a one-off project; it’s an ongoing programme that requires frequent revisiting to ensure policies and procedures remain effective, relevant and up to date.

The new e-Privacy Regulation will exist alongside the GDPR, bringing with it specific privacy rights relating to electronic communications. It will affect most businesses in some way.

With the recent surge in improvements to electronic communications, the widespread use of instant messaging and internet calling on apps and the growth of biometric technologies such as fingerprint passwords, the existing legislation is desperately out of touch.

The principal areas that the new legislation will seek to deal with are:

New and fast growing technologies, including messaging and calling services such as WhatsApp, Messenger and Skype

Stronger rules to increase the level of protection for all people and businesses for their electronic communications

Communications content and metadata guaranteeing privacy for this data, such as the time and location of a call

Simpler rules on cookies: a more user-friendly and streamlined cookie provision

Protection against spam – unsolicited electronic communications by email, SMS or automated calling machines are likely to be banned, and  marketing callers will have to display their phone number or use a special prefix that indicates a marketing call

More effective enforcement by local data protection authorities

What you must consider
The e-Privacy Regulation has the potential to radically change some elements of business e-marketing, not least due to the significant increase in maximum fines (as for the GDPR, fines for breach of ePR may be up to four per cent of annual turnover of £20 million).

As currently drafted, the regulation intends to align the requirement of ‘consent’ for business to business electronic marketing communications to match that used to regulate business to consumer contact. Organisations reliant on business to business e-marketing will have to meet a higher threshold of consent which must be freely given and unambiguous. This is a sea-change away from the concepts of implied consent and the current distinction between e-marketing to businesses (no consent needed) and consumers that have been relied upon by businesses under the outgoing e-privacy law.

On the other hand, the good news is that the current consent laws have been recognised as being overly-inclusive in their application to non-intrusive practices, such as using analytic cookies to improve experience (for example those that maintain a shopping cart’s history). It is expected ePR will simplify the rules on use of cookies.

At Square One Law, we advise businesses to keep a close eye on developments and seek advice. If you require further information about GDPR or e-privacy contact Gill Hall.