DDV-Practice Help provides answers that are also relevant for user tracking
The German Dialog Marketing Association regularly publishes best practice guides and practice help, making recommendations to reduce the uncertainties associated with the GDPR. A current practice help - " Advertising and selection under the balancing of interests clause " - (as of February 2019) deals with the constellations in which the processing of personal data is permissible under the balancing of interests clause and therefore the obtaining of consent is not necessary. This also touches on the question of under which circumstances the tracking of users may be permitted.
Below we have summarized what we consider to be the most important points of the Practice Help for you.
Literal transfers from the DDV Practice Help – this applies to subheadings and quoted text passages – are marked in italics and/or with quotation marks.
"balancing of interests or consent"
In principle, the GDPR does not contain a strict consent requirement for the processing of personal data in the context of dialogue marketing.
In dialogue marketing, the processing of personal data is based on the balancing of interests clause. This means that as long as the interests of the relevant recipients that are considered worthy of protection do not prevail and there is no objection from them, the interest of the advertiser prevails. In practice, prior consent is therefore the exception. This is only necessary if the processing is particularly sensitive for the data subjects. This means that the processing of data in the context of dialogue marketing can be regarded as a legitimate interest according to Recital 47.
The discussion about the balancing of interests is australia number dataset also significantly influenced by the comparison with social media. The latter is accused of collecting data particularly diligently and of using it for advertising purposes, presumably with the help of artificial intelligence.
The balancing of interests clause is also not limited to one company when processing data and the interests of third parties may be taken into account. This is because processing also includes disclosure through transmission, e.g. of addresses and selection criteria. This means that if a company collects personal data and commissions another company to apply or transmits data to it, the balancing of interests clause can be sufficient justification.
"Individual questions on the balancing of interests"
In connection with the balancing of interests, the DDV has drawn up several individual questions in order to clarify the problem and show the scope for action.
“What role does the expectations of the people affected play?”
Transparency is the key to dialogue marketing so that there are no negative surprises. It is therefore important to provide information in the data protection declaration that processing takes place as part of dialogue marketing. If a data subject does not have to expect that their personal data will be processed, their interests may prevail and processing may not be permitted.
Another use case is publicly accessible personal data. Here, the person concerned must expect that the data will be processed. In this case, it is also in line with the experience of the person concerned that confidential treatment is unlikely.