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Marketing and the soft opt-in

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Under the GDPR organisations must ensure they have a lawful processing reason when processing personal data and this includes sending marketing communications to individuals. Legitimate interests and consent will be the lawful data processing reasons used in most situations.

However electronic marketing, for example sending marketing emails, will fall within the Privacy and Electronic Communications Regulations (PECR) where companies do have to obtain consent to market electronically unless they can utilise the 'soft opt-in' exemption to obtaining consent.

The soft opt-in will allow you to send marketing texts or emails to individuals if:

1.  You have obtained the contact details of the individual in the course of a sale (or negotiations for a sale) of a product or service to that person;

2.  You are only marketing your own similar products or services; and

3. You give the individual a simple opportunity to refuse or opt out of the marketing, both when first collecting the details and in every message after that.

Therefore where individuals have been involved in a sale or purchase previously you will probably be able to rely on the soft opt in. Additionally by previously having actively signed up to your newsletter to receive promotions an individual is likely to have demonstrated their interest in your products and services and shown that they expect to receive promotional marketing material. This scenario is therefore also likely to satisfy (1) above.

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