You may be aware that Performance Horizon was part of a group of partner marketing solution providers that sent a communication to EU-based publishers last week regarding GDPR. GDPR is a very important topic for all marketers, including partner marketers. Given that, we have also published the same letter below.
As you may be aware the GDPR (General Data Protection Regulation) comes into force on 25th May 2018. Due to the importance of complying with the regulation, a number of UK affiliate companies have collaborated to ensure you receive clear, industry-wide guidance and a consistent message from companies you work with.
Those companies are; affilinet, Awin, CJ Affiliate, Impact Radius, Optimise, Performance Horizon, Rakuten Affiliate Marketing, Skimlinks, Tradedoubler and Webgains.
What is the GDPR?
The EU General Data Protection Regulation (GDPR) is the new legal framework governing the use of personal data across all EU markets. Think of it as a new set of data laws fit for the digital age.
It replaces current national data protection laws and the existing EU data protection framework. The GDPR is designed to give consumers more control of their personal information and applies identically across EU. Regardless of the UK’s future relationship with the EU, the British Government has stated it intends to implement the legislation equally alongside EU member nations. Significantly, the GDPR introduces increased sanctions; organisations can be fined up to €20m or 4% of annual turnover (whichever is greater) if they breach the law.
The New Rules
We’ve selected the areas of the GDPR we believe are most relevant at the present time for the affiliate industry. However, it is important to familiarise yourself with the full details as there are many more implications that need to be understood. In addition, we have provided useful links at the end of this communication.
1. Personal Data
Consumers’ personal data sits at the heart of the GDPR and the classification of personal data is broadened under the GDPR. This means data the affiliate industry relies on that is not currently considered personal data may under the GDPR now be classified as such. Whilst a definitive list of personal identifiers does not exist for affiliate marketers, we can safely assume it will include information such as cookie IDs, customer numbers, IP addresses, device IDs etc. These are identifiers that many networks and platforms capture as part of their standard tracking.
Publishers using affiliate tracking will therefore have an obligation to ensure they are legally compliant with the new regulation.
2. Legal Basis for Processing Personal Data
Businesses will require a legal basis to process personal data. There are six legal bases available; the two most commonly used in the digital advertising sector are consent and legitimate interest.
Legitimate interest is distinct from consent. According to the ICO, “It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing”. Should a business choose legitimate interest they have to be confident in demonstrating this as an appropriate legal basis.
Where consent is considered necessary the Information Commissioner’s Office (ICO) states, “Consent means offering individuals real choice and control. Genuine consent should put individuals in charge, build customer trust and engagement, and enhance your reputation”.
“Contract” is also a legal basis which may be applicable in some cases. It refers to instances where there are specific contract agreements in place between a business and its customers (data subjects) which allow the business to collect and process personal data. Some publishers (such as cashback businesses) may well have such agreements in place with their users.
Given the diverse nature of the affiliate channel and the variety of digital channels affiliates use to generate sales, it is difficult for networks to offer recommendations. Where prescriptive requirements and necessary, individual networks will state this in due course.
You can find details of all the legal bases here.
3. The ePrivacy Directive
The GDPR does not supersede the ePrivacy Directive, rather it runs concurrently. This Directive is currently under review to ensure it aligns with the GDPR, once finalized. A focus of the revision is to improve transparency to consumers and introduce stricter opt-ins for cookies (and similar tracking technologies). Under the existing ePrivacy Directive, the ICO has made clear consent is necessary for “cookies and similar technologies”. Thus, regardless of which legal basis is used for processing personal data under GDPR rules, the ePrivacy Directive remains in place meaning that unambiguous consent is required for the use of many cookies because the GDPR only considers consent sufficient if it is “unambiguous”. This means that publishers should be reviewing their consent mechanisms along with ICO guidance and making changes accordingly.
4. An Industry Consent Solution
Given the potentially significant impact on all forms of online advertising the industry has collaborated to create general standards and approaches. In November 2017 IAB Europe announced a technical standard for online consent and industry stakeholders are building a consent tool which is intended to ensure GDPR and ePrivacy Directive compliance in time for the May deadline. Please sign up for updates here.
If you choose to feature a consent solution on your website you may be able to use free versions that are available online. A number of businesses are developing consent tools; we advise you assess other possible consent solutions appropriate for your business. There are a variety of options and tools available online and we advise that solutions should be assessed to ensure they can be implemented to comply with the regulations.
In addition to this the collective of businesses listed above are here to offer support.
5. Next Steps Checklist for Publishers
- Publishers should assess how GDPR impacts their business and document the measures taken to comply with the rules.
- Publishers should pay attention to ensuring transparency to consumers and decide the most appropriate legal basis for collecting and processing personal data from site visitors.
- Publishers should assess and upgrade privacy policies and cookie notices to provide transparency and upgrade consent capture.
- Publishers should seek their own legal advice. This communication should not be read as legal advice.
- Publishers should refer to their individual affiliate networks and platforms for any specific guidance or requirements to comply with GDPR.
The GDPR signifies changes that all businesses will have to make and the impact on the industry at this stage is uncertain. However, these impacts can be mitigated with demonstrable understanding, effort and measures to comply with the rules. Whilst the deadline is 25th May 2018 it marks the start of this new age of data privacy.
It is important that you understand your obligations as a business for the GDPR and make any necessary amendments to be compliant. Please do review the links below for more information and consider following our advice above.
ePrivacy Directive IAB factsheet: https://www.iabuk.net/policy/briefings/iab-factsheet-eu-eprivacy-regulation
IAB GDPR Hub: https://www.iabuk.net/gdpr-hub
ICO Guide to the GDPR: https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/
ICO Guidance on Data Controllers and Data Processors: https://ico.org.uk/media/for-organisations/documents/1546/data-controllers-and-data-processors-dp-guidance.pdf
IAB consent mechanism: https://www.iabeurope.eu/policy/gig-working-paper-on-gdpr-consent/