Disclaimer – We are not providing any legal advice or consultation pertaining to GDPR or other compliance issues. Please consult with your legal teams and resources to ensure they are aware of their obligations under applicable regulations.
At present there are differences between B2B marketing and B2C marketing, the main difference that is recognised by the Privacy and Electronic Communications Regulations (PECR) is that between B2B and B2C there is a distinct difference between a ‘Natural Person’ – Human Being (B2C) and a ‘Legal Person’ – Business/Company (B2B). Employees of Limited Companies, LLPs and Government departments are not treated as consumers and so their data is B2B this means that they can be emailed without an active opt-in under these conditions:
- You must identify yourself
- You must provide a valid email address
- You must give the recipient an option to opt-out.
According to the DMA when dealing with sole traders or partnerships as they are not employees of a corporate organisation you will need to comply with rules relating to B2C marketing thereby needing opt-in consent.
If the data subjects details have been obtained in the context of a sale of a product/service then it is also acceptable to market via email providing the content is relevant to the product/service that the data subject has consumed and that they are given an easily accessible option to opt-out.
B2B marketers have the ability to use the ‘Legitimate Interest’ legal ground to justify their marketing actions, such as sending out an email due to a critical product announcement. This would be considered as a legitimate interest that the recipient receives this email, however, it is in the hands of the company sending the email to provide evidence, if required, that there is a genuine legitimate interest, therefore this clause cannot be used as a workaround to comply with GDPR.
PECR is currently being debated by EU parliament and Council to be overwritten with the ePrivacy regulation which could then require opt-in consent for B2B marketing, however, there is a long way to go and nothing is set in stone.