With the impending GDPR changes, there’s a great deal of interest amongst marketers and fundraisers in using legitimate interests as an alternative to obtaining consent. In many circumstances, this is legally acceptable – but will your patrons hate you for it?

Many marketers and fundraisers are seeing legitimate interests as their salvation – and at first glance it may appear to be the case. Using legitimate interests, it’s simply necessary to identify a reasonable interest your organisation has, check that you aren’t horrifically infringing your patrons’ rights to a bit of peace and quiet, and you’re off. What’s not to like?

Legitimate interests is potentially an issue under the Privacy in Electronic Communications Regulations (PECR), a lesser known cousin to GDPR which requires consent for electronic communication such as email in many circumstances. But to me, there’s a more fundamental issue.

I see widespread use of legitimate interests as a failure of brand messaging.

Think about the message you’re sending to your valued and hard-won audience by picking legitimate interests.

Legitimate interests requires you to balance your legitimate interests to market to or fundraise from your audience over your audience’s interests to choose what they hear from you and when. Furthermore, legitimate interests can only be used when necessary – and the only circumstances where legitimate interests is a necessary alternative to consent are when your audience wouldn’t be willing to give you that consent.

So, to me, the message you’re putting out is “I know you’ve not chosen to hear from us, but our need is greater than yours, so here we are in your inbox or your missed calls”. If that was an ex girlfriend or boyfriend, if it became a habit you’d call it stalking, and it’d be far from endearing.

I see active and informed consent as the right way to show your audience you care. Using consent, you place the decision in your audience’s hands, and you show them you value their preferences, interests and choices. Sure, there’s a risk some patrons say “thanks but no thanks” – but were those people really going to attend or donate anyway? Marketing a quality experience is a game of quality not quantity.

It’s important to get the lawful basis right from the outset – as not only can changing it be difficult to justify, but potentially unfair to the patron. If there’s a genuine change in circumstances or you have a new and unanticipated purpose, you may find that you require a review of your lawful basis. If so, you need to inform the individual and document any change. Of course, you may not need a new lawful basis if your new purpose is compatible with the lawful basis you selected originally.

At PatronBase, we have a rich range of tools around legitimate interests – generating mailing lists based on previous attendances, patterns of attendance, promoters, genres and much more. However, we’ve thrown our efforts behind expanding our already rich functionality for seeking consent. Your customers can consent to any, all or none of an unlimited range of reasons for contact or means of contact defined by you. We track the consent text the customer saw, and the means they saw it, as well as when.

More importantly, you can also define any number of data sharing partners on a production by production basis, and your customers will be prompted to allow you to share data with the data sharing partners relevant for shows they’ve attended.

So, with such a wide range of consent options available, is legitimate interests really necessary? And more importantly, do you trust your audience enough to let them choose?

by Rob Walters, 04 May 2018

Disclaimer: This article does not constitute legal advice and should not be regarded as such. If in doubt, you should consult a qualified legal professional.