While the European Parliament hurtles headlong into radically and irrevocably changing our data protection laws, most British businesses are utterly unaware of the huge consequences. Our existing framework is centred on the European Data Protection Directive 95/46/EC. The important thing to remember here is that it is a “directive” - a proposal, a wish list, something which the individual member states can interpret in their own way into their own law.
The new proposals will become European law, ones which, as a member state, Britain must obey. The current guidelines are based on the principle of consumer opt-out. I know digital marketers will argue that they operate on an opt-in basis, but at the moment it remains a pseudo opt-out, in my view.
Historically, we have argued that opt-in would lay waste to our industry. But Germany essentially moved to an opt-in model about four years ago and far from decimating the direct marketing industry, it has in fact enhanced it. Response rates are improving along with consumer fondness for marketing material - I suspect we will eventually make the switch to opt-in, too.
So what are the critical changes being proposed? The right to be forgotten (now renamed the right to erasure): in order to comply with this, every record of any contact or dealing with an individual would have to be erased at their request. For a data owner, this is pretty much impossible.
There would be a single, central data protection authority - a one-stop shop if you will - which would become the de-facto judge and jury in the event that our own authority did not carry out explicit instructions from above.
The imposition of mandatory DP officers if you deal with more than 500 data subjects every year! A drastic increase in fines and penalties in the event of a data breach. And, most worrying of all, a significant tightening up of the “legitimate interest” rules.
Consent (under the right to erasure rules) will be required at all times, along with explicit explanation of use. By restricting legitimate interest rules, the legislators are proposing that using an individual’s data for analysis or profiling would no longer be legitimate! Profiling would effectively become illegal - data modeling would have to be anonymised and it would call a swift end to analytics as we know it.
And if the above highlights don’t get you worried, rest assured there are plenty more equally barmy proposals in the wings! The irony is that every marketer today accepts that the individual is central to any transaction. Any company worth its salt is investing heavily in using data to improve the efficiency of their marketing and to create an experience for the consumer that is open, honest and transparent in a manner that emboldens trust and confidence.
At a time when we have never been doing it better, Brussels chooses to reinvent the wheel! The main proponent of this legislation is Viviane Reding, a European Commission vice president who says that, “human dignity and personal liberties will be our yardstick”.
If you’re as concerned about this as I am, I would ask you to write to your MEP, your MP (and anyone else who’ll listen) and tell them that our yardstick will be profitable businesses, increased employment and respect for consumers in a sensibly and reasonably legislated marketplace.