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Compliance Bulletin 76
GDPR, Insurance Distribution and Transparency
data to undertake their matter for them. So far as marketing communications are concerned (to the extent that greetings cards count as such) there would either have to be consent to do so or more likely the firm would rely on the more general ‘legitimate interests’ heading which would certainly come into play if communicating with someone for the first time. If adding to a mailing list, for example, and writing to a new contact to ask if they would like to continue to hear from you, the argument would be that you believe that they will benefit from the contact and until you have written to them for the first time you have no way of knowing whether they object to their personal data being used in this way. If, of course, they should reply to say “please don’t contact me again” you would not then have the necessary consent to remain in touch with them, nor could you fairly claim still to have a legitimate interest in so doing, although you could fairly keep a record of their non- consent so as to be sure not to approach them again.
The real problems would arise if you were to continue to mailshot customers who had specifically withdrawn their consent to future communications, as was the case with a substantial fine imposed on Flybe for sending out mass e-mails to passengers who had withdrawn their consent to their data being used in this way. This case also highlighted the further consideration of the Privacy and Electronic Communications Regulations (“PECR”). Broadly speaking this prohibits sending out spam messaging but should not prevent you from sending messages that are properly targeted.
So may you send out seasonal greetings or ever add to any marketing lists that you maintain? The answer would seem to be “yes”, as long as you genuinely believe that the client’s interest in hearing from you will outweigh any concerns that they may have in their personal data being used in this way. If they indicate that they do not want to receive greetings in the future you should, of course, remove them from the list. Ideally you should request their permission to continue to mail them in this way but this might rather spoil the nature of the goodwill message being conveyed. Perhaps in this case the tacit consent of “no-reply” might be taken as sufficient consent to repeat the exercise next year under the legitimate interests heading or, perhaps, we might hope for clearer guidance on this issue before next year.
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