Will the new Quebec laws that set a new data protection and privacy standard for doing business in Canada (Bill 64 was passed in September 2021, with the first set of obligations coming into force this September – 2022.) make it very difficult for Canadian companies to use personal data for marketing purposes? Let’s have a look…
The General Data Protection Regulations (GDPR) in the EU and UK have been viewed as a tough new standard for privacy and data protection reform. They have 3 “lawful basis of processing” that businesses can rely on to process an individual’s personal information (send an email, profiling their behaviour, etc). They are:
1. Consent
2. Contractual
3. Legitimate Interest
Currently in the EU, stick-handling between the GDPR and the ePrivacy Directive, most businesses rely heavily on LEGITIMATE INTEREST to conduct business marketing – in so far as using people’s personal data is concerned. Why is that? Many organizations use online marketing to attract new customers – cold calling using digital and email. CONSENT and CONTRACTUAL are for existing business relationships rather than new ones. So cold calling can only be done using CONSENT or LEGITIMATE INTEREST.
Let’s face it, CONSENT will be hard to get for the next few years – until businesses display a proven respect for how they use or abuse our personal data. We wonder if people see that businesses will only use their data the way they promised, might we then trust them enough to offer up our consent?
In the interim, consent will not be easy or cheap to get for most businesses.
CONTRACTUAL must not be stretched beyond it’s purpose limitation and at best allows us to use personal data to market to individuals who have done business with us in the recent past – if the communication is related to fulfilling the contract. So up-selling or introducing brand new un-related product cannot be claimed under CONTRACTUAL. The law does not however allow business to communicate using personal data of prospects or potential new customers without CONSENT. Once a person willingly enters your business community, some implied consent may apply but the corporate practices of “throwing s*^t against the wall”, using personal data will no longer be allowed – cheap as it is to execute.
So here’s the bad news. Quebec left “LEGITIMATE INTEREST” out of Bill 64. That leaves CONSENT and CONTRACTUAL only. If a Canadian business wishes to use personal data to improve communications or marketing these 2 options are the only ones available. Does that mean cold-calling or seeking new customers cannot be done online without clear and freely given CONSENT?
Will we see a shift back to what we know as “traditional media” like advertising on TV, in magazines, newspapers, on radio or billboards? The core promise of the internet was that we could micro-target our promotional efforts and engage people one-on-one. Fact is, most marketers still have no clue how to do that effectively because they are too busy operating like the world wide web is just another way to reach lots of eyeballs. That mass marketing mindset may be killing their online efforts! Many of the tactics that work in traditional media do not translate well to online marketing.
These next few years are going to be very interesting for marketers and Data Governance so join us at the Response Marketing Association as we conduct an online conference for Responsible Data Governance on April 20, 2022. For more information contact info@responsema.org
