I received an interesting marketing email yesterday. Interesting because I couldn’t remember signing up for it, it had no visible unsubscribe (including when you searched for unsubscribe, opt out and hovered over each bit of text to find a link) yet it said the company “fully compl[ied] with GDPR”.
Upon enquiry, I was told of a conversation (with a detail that suggests it definitely happened – she knew about my children) and that I was being mailed under legitimate interest. I’m personally happy to receive in the case of the company. But the email got me thinking and I wanted to reflag our GDPR policy, and discuss legitimate interest in PR as it’s incredibly vague.
Do journalists have a legitimate interest to receive press releases? Do we have their permission to hold data on them? How long is reasonable to hold their data without re-requesting consent?
Before I begin – I should probably flag our GDPR policy, which can be viewed here.
How we define legitimate interest – and should journalists receive them
Legitimate interest is incredibly vague. And therefore incredibly dangerous to rely on. I dislike it, but there are times when I think it’s valid. In the months leading up to GDPR coming in I sat down with friends in the industry (plus one from a GDPR consultant client – Data Compliance Doctors) and discussed what could and couldn’t be done.
There were many interpretations (and even after the debate we all used variants according to our beliefs of what did and didn’t constitute legitimate interest) and I went with what I felt most comfortable with – putting myself in the shoes of the journalists.
Our understanding is that there is a legitimate interest for a journalist to receive a press release or pitch if they write about the subject regularly and it would stand a relatively high chance of being published. The questions we ask are:
- Does the journalist cover their sector?
- How often have they covered the client / a direct comparable rival?
- Does the journalists have a listing of what they cover
- Does the publication give their contacts on its website?
- Does the publication have a “tip us” or “send releases” section on the site?
On discussion, we believe you can use legitimate interest if the publication has asked for press releases to be sent, named the person (or a PR email address) and you can (easily) argue that they cover this specific topic. Still, they should be given the chance to not receive these (what Data Compliance Doctors called a soft opt in), with an original email or call explaining what they’d be likely to receive and why we think they’re relevant.
We have obvious sanity checks – for example if there are more than 2-3 people receiving a press release at a publication it’s probably not right. And for B2B campaigns, if there were national journalists on the list then each one should be a case by case call – seeking written permission, or calling to discuss a story and requesting permission to email the release on a case-by-case basis.
Does a press release fall under marketing communications?
We argue that a press release is just that. But a discussion about a bigger story that involves the announcement, or a pitch to gauge interest in the announcement, should fall on the right side of the legislation.
It is a journalist’s job to write stories for the publication. It is not their job to be spammed with irrelevant press releases because it’s easy to do so.
Another difficult one. Under GDPR, you don’t just need permission (or legitimate interest) to email them marketing literature you also need to it to hold their data and process it.
Here we believe there is a legitimate interest for journalists to receive information in a timely manner and therefore to have a phone number or email on record. Given these are generally made publicly available via the publication websites we argue that this is allowable under legitimate interest.
How long for though?
We believe that lists should be constantly updated. We think 12-18 months is probably about right to evaluate each contact. Again, we don’t think it’s in the journalists’ interests to receive thousands of emails requesting to be kept on a list.
So we instead examine the following:
- Do they regularly open press releases?
- Have they written about the company?
- Do they ask to see the release following a pitch?
If the answer is no, then we can either remove them or email / call them to ask if they want to stay on it.