Across the world, large retail stores and small businesses alike are shutting their doors. International flights and sporting events, conferences and concerts (and everything in between) are being cancelled. With all of the cancellations, postponements, and alternative arrangements that are required as a result of this global crisis, plus the special desire of all retail, travel, and other consumer-facing businesses to stay in touch with their customers, many organisations face the critical challenge of getting to grips with the legal rules that apply to those unsolicited communications and interactions.
Privacy and data protection laws everywhere regulate the ability of organisations to communicate with individuals for both service-related and promotional purposes. Direct marketing in particular is strictly regulated in many jurisdictions by a myriad of rules and exemptions that determine the conditions under which existing and prospective customers can be contacted for promotional purposes. In the EU, the e-Privacy Directive establishes specific rules for different channels of communication such as e-mail, SMS, and telephone calls that either require an opt-in or opt-out approach. The GDPR provides an absolute right to object to all types of direct marketing communications.
At first glance, it seems logical to assume that even if someone has unsubscribed from e-mail marketing or opted-out of sales calls, it may be reasonable to contact them to tell them that the concert they have booked tickets for or the hairdresser appointment they have scheduled has now been postponed. Similarly, when a business — such as bank, a supermarket, or retailer — ceases to operate under normal trading conditions and hours, it will naturally want to let its customers know about it.
But what if that e-mail or telephone call to a consumer also includes an advertisement for its online offering, upcoming summer events, or a new product/service on offer which goes beyond what the consumer would typically expect from the organisation in question? Does that communication then qualify as ‘transactional’ (and hence outside the direct marketing rules) or ‘promotional’? Understanding the distinction between these two types of communications and when a transactional communication becomes direct marketing has become an urgent necessity to ensure that a well-intended attempt to reassure customers does not become a law infringing use of their personal data.
Penalising businesses for getting this wrong is unlikely to be at the top of regulators’ lists during these unprecedented and uncertain times. However, to retain consumer confidence and stay on the right side of the legal risk from both from a customer and regulatory standpoint, it is crucial to remember that individuals have the right to control how their contact details are used by others. Therefore, even in times of coronavirus, it is essential that businesses consider and respect the limits of what is permissible under the laws of the jurisdictions in which they operate when trying to get touch with consumers. Social distancing has made customer communications more important than ever, but getting those communications right today will likely be remembered once this nightmare is finally over.