B2B marketers to face a much tougher regime under the new ePrivacy rules

The EU Commission have proposed making business-to-business (B2B) marketing via electronic channels permissable only with an opt-in consent. Under PECR email and SMS B2B marketing is opt-out. Under the new rules businesses would need a prior consent in order to contact other businesses with direct marketing communications. A big change.

Last week we published an article that looked at the leaked new ePrivacy rules drafted by the EU Commission. The leaked copy we obtained is from November and so is not the final version, noticeable by the number of spelling and grammar errors. The leaked copy is a pretty good indication of the line of thinking in the Commission.

Most of the coverage in the press focussed on what the new rules will mean for online tracking and cookies. There are important changes here but another critical proposition has not received adequate attention.

According to article 16 Paragraph 1: “The use of electronic services by natural or legal persons for the purposes of transmitting direct marketing communications is allowed only in respect of end-users who have given their prior consent.”

A ‘natural person’ is a human being and so refers directly to consumers. Whereas, ‘legal person’ is a company, plc or public authority, which has a separate legal identity.

The extenstion to the definition of ‘legal persons’ means that the general rule for sending unsolicited email marketing to corporate subscribers will need their prior opt-in consent. Currently, B2B email marketers are allowed to contact corporate subscribers on an opt-out basis.

However, the existing customer soft opt-in for email marketing will remain for business and consumer marketing. If a business obtains either an organisations or an individual’s email address during the course of a sale then that email address can be used for direct marketing purposes if the marketing is for similar products or services and has a clear opt-out displayed in the email.

This is little consolation for B2B marketers. The change in the rules for B2B marketing will have a large economic impact on businesses as they will be unable to communicate with potential customers. If businesses are unable to communicate with their prospects, then sales will take a hit and this goes down the chain affecting jobs too.

At this critical period in time when the UK and the EU faces many economic challenges and profound economic uncertainty swinging an axe to B2B marketing is unwise. The EU Commission should be doing all it can to promote economic growth and not stunt it.

It is strange that the EU Commission would seek to make this change considering there has been very little demand for it from the business community. Consumer marketing has often been the focus of policymakers owing to a dearth of complaints relating to nuisance calls and spam mail. However, no such situation exists for B2B marketing.

Under the new rules a cleaning company would be unable to email a Hilton Hotel to offer their services. This puts Hilton at a disadvantage as they are unable to hear about potential offers but often smaller supplier companies are unable to win new contracts because they cannot contact prospects.

The DMA is against the proposal in the new ePrivacy rules, which will make it harder for businesses to market their products and services to other businesses and will lobby to ensure B2B marketing is protected.

Rachel Aldighieri, MD at the DMA:

“The proposed changes to the rules governing B2B contact are not something the business community or customers are calling for. We always advocate a customer-first approach to all marketing. If these proposals go ahead they will have a profound and negative effect on the UK economy. B2B represents a significant and important part of the economy and much of this relies on marketing through legitimate interest to contact potential new customers.

“The DMA will lobby firmly against these proposals and for UK businesses to retain their ability to market themselves to other businesses if this change remains in the final text released in the New Year. This is only the start of what could be a long process, but we will be ready to represent the interests of UK businesses and putting customers first every step of the way.”

We anticipate the final proposal will be announced in early January next year so formal lobbying will begin then.

This is only the start of a long process. It took seven years for the General Data Protection Regulation (GDPR) to go from an EU Commission idea to becoming law.

Once the final text is published the EU Council of Ministers and the EU Parliament will have their chance to review the text and could also make quite substantial amendments. It is during this time that the DMA will lobby on behalf of the B2B marketing community.