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Implications of New German Privacy Law

Date: August, 2009 --

Although not top of mind when planning a direct mail campaign, it is never misplaced effort to consider privacy law restrictions and changes to those laws and regulations. They can have long-term effects which can be planned for in advance. For example, as reported in a special alert by The Prescott Report on July 6 this year, the German Bundestag, or legislature, adopted substantial amendments to their privacy legislation on July 4. These changes will have a profound effect on the practice of direct marketing and the maintenance of databases and files.

First and most critically, under the new law, with some exceptions we will discuss, from September 1, 2009, direct marketing offers may only be sent to individuals who have expressly consented to receive them. There are several exceptions to this general rule, and one of these is big and comforting. It does not apply to the names and data now in your file, whether customers or prospects, and these can be used for marketing without express consent until August 31, 2012. The other exceptions, which apply to any names acquired from September 1, for whom marketing approaches require consent, are the following: offers to current customers, offers to individuals whose names and addresses are listed in public directories, requests for donations by charitable groups, and in the business-to-business context.

In short, it will be necessary to either segregate new names to file after September 1, or flag them, so that the names are treated appropriately. Also, do not forget that there is a German self-regulatory opt-out list which it is a good practice to consider running against your lists, something which Data Services can assist you with.

Prior to the adoption of these amendments, there were dire predictions of the end of the list business in Germany, but this now seems unlikely. Two further provisions in the law permit third parties to use names and addresses without the express consent of the individuals. In case the personal data is 'transferred' for marketing purposes, the original source of the data (ie, the list renter probably) has to be named in the promotion piece. In the case of the 'use' of data for third party marketing, the 'controller of the information must be named.

Bottom line: no significant change to marketing to the current customer list, although thought should be given to obtaining consent. Some care will need to be taken with prospect lists going forward. Look for some clever creative work on disclosing the 'original source' or 'controller' of the data. It is conceivable that these latter exceptions will be rather limited in practice by the authorities, bringing more pressure to move toward proven opt-in with all data lists.

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