Mailtrap Blog

Emails and GDPR – 11 Questions to Answer

On May 25, 2018, the General Data Protection Regulation (GDPR) took effect in the EU. Before this, there were many concerns as to the impact GDPR would have on email marketing. Some predicted adverse consequences and total disruption of existing marketing strategies. The rules have changed de facto, and you’ll have to pay daunting fines for their violation. But the devil is not as black as he is painted. Therefore, we collected the 10 most asked questions for GDPR email compliance and answered them.

What is GDPR all about?

Personal data protection is what the GDPR focuses on. Personal data is any information that can explicitly or implicitly identify an individual. This may include:

  • name
  • location
  • addresses (mail, email, IP, etc.)
  • bank details
  • gender
  • religious beliefs
  • ethnicity
  • political opinion
  • biometric data
  • web cookies
  • contacts
  • device IDs
  • and pseudonymous data

GDPR lays out rules and principles of personal data protection. It’s aimed at the way companies collect, store, or use the data. There is no direct emphasis on email or email marketing. However, the mailbox of a company contains lots of data that can be deemed personal: names, email addresses, conversations, and much more. Therefore, an email is a valuable asset that must be in compliance with GDPR requirements. This includes email marketing, antispam activities, as well as email encryption and safety.

Question #1 – What is the biggest headache for an email marketer under the GDPR?

Short answer:

Where in the GDPR is this covered:

Long answer:

According to the EU Data Protection Directive (Directive 95/46/EC), data should not be disclosed without the data subject’s consent. GDPR expanded this statement and elaborated requirements for collection and storage of users’ consent. Details are laid out in Article 6, but the key points are the following:

In terms of email marketing, this entails an increased focus on how you handle users’ email consent. The best GDPR-compliant practices are, as follows:

At the same time, opt-in boxes must not be pre-ticked. According to GDPR Recital 32:

Silence, pre-ticked boxes, or inactivity should not constitute consent. 

Question #2 – To send, or not to send emails to the existing email list

Short answer:

Where in the GDPR is this covered:

Long answer:

Mailtrap.io began to take measures to ensure full compliance with GDPR far before it came into effect. We even shared the details in the blog post, “How Mailtrap is Getting Ready for GDPR.” Before GDPR, our customer base included over 300K email addresses. These were users who signed up for Mailtrap services and agreed to receive transactional emails like product updates, changes in billing plans, and other important notes. We did not, however, request explicit consent to send marketing emails to them. So, shall we reconfirm or can we send emails without it?

In the case of Mailtrap, we had consent for sending transactional emails only. So, sending marketing emails without re-engaging our email list would be a violation of the GDPR.

Question #3 – Email retention policy – what is it for?

Short answer:

Where in the GDPR is this covered:

Long answer:

Data erasure is one of the main data protection principles laid out in GDPR. The essence of this is that companies can store personal data of individuals no longer than it is necessary. The storage period should be set up according to the reason why the data is needed for processing. For example, you’re processing CVs while looking for candidates for a certain position. Once the candidate has been found, you don’t have to get rid of all the processed CVs at once. On the other hand, storing personal data (from CVs) for 5+ years without any update would be irrelevant. 

There are exclusions for when companies can keep the data for a longer period. Those include archiving or scientific purposes, law restrictions, and other reasons. In these cases, the appropriate data security measures are obligatory. 

In terms of GDPR and emails, the companies have to focus on the amount of data their employees store in their mailboxes. For this purpose, they need to establish the email retention policy that will regulate frequency, volume, and other aspects of email data erasure. The idea is to minimize the adverse consequences of a data breach in the case of a mailbox break-in.

Question #4 – Did the GDPR get rid of spam and doom email marketing?

Short answer:

Where in the GDPR is this covered:

Long answer:

Someone expected significant changes after May 25, 2018. There were predictions for the demise of spam. GDPR was introduced as a hero that beats outlaws spreading malicious emails. But the hard-driving requirements were meant to protect personal data rather than combat spammers. You can see the outcome by yourself – our spam folders have not emptied. Maybe, we should wait till the email consent-centered regulation will help. Who knows? 

Another prediction referred to the sunset of email marketers. Oppositionists introduced GDPR as an anti-email marketing document. However, it’s only meant to facilitate a customer’s email experience. Yes, GDPR stimulates companies to be more attentive to how they work with data. Those who are OK with that, survive; others don’t.

Question #5 – Will I get penalized for poor email safety measures? 

Short answer:

Where in the GDPR is this covered:

Long answer:

Let’s say, you’ve experienced a data breach because of your employee’s negligence, mailbox break-in, or anything else. Mostly, this happens due to the lack of security measures and policies that could have prevented a data breach. GDPR is not aimed at punishing anyone for poor email safety measures alone. A penalty for GDPR non-compliance will be a result of many internal problems with security and a lack of understanding of GDPR principles. 

The GDPR established the following fines for violation of the rules:

At the same time, the threshold of €20 ($22.3) million is not ultimate. At the beginning of 2019, the French data privacy body, CNIL, imposed a €50 million ($57 million) penalty to Google. The official reason was “for lack of transparency, inadequate information and lack of valid consent regarding the ads personalization.” 

Data protection regulators in each EU country are entitled to administer fines themselves. That’s why the UK Information Commissioner’s Office could penalize British Airways for £183 ($230) million. The reason was the 2018 data breach that compromised 500K consumers.

Question #6 – How do you craft a GDPR-compliant email?

Short answer:

Where in the GDPR is this covered:

Long answer:

A GDPR-compliant email includes the following aspects:

According to Article 5, personal data shall be processed in a manner that ensures appropriate security. In terms of email marketing, this entails encryption as the most viable measure. At the same time, it is not required, and every company is free to opt for their own data security practices. For more on this, check out our guide to email encryption.

Above, we highlighted how the opt-in and opt-out options inside the email should look. You may encourage users to subscribe to your services but you cannot induce them to do it. The email consent must be freely given. The opt-out option is a user’s right to withdraw his or her​ consent. This must be free and easy to accomplish without any additional information required (except for an email address). The list-unsubscribe header might be a good solution for that.

Question #7 – What are the restrictions for data profiling?

Short answer:

Where in the GDPR is this covered:

Long answer:

Data profiling is the concept of using data for assessing individual-related aspects like behavior, preferences, etc. In terms of email marketing, this relates to sending personalized and targeted email campaigns. GDPR did not ban data profiling but affected it in some way. To be GDPR-compliant, you have to respect users’ right not to be subjected to a decision based on automated processing or profiling. Also, data subjects have the right to:

Also, keep in mind that profiling on children is not allowed .

Question #8 – Why is the security of HR specialists a top priority for GDPR email compliance?

Short answer:

Where in the GDPR is this covered:

Long answer:

HR specialists work with people, which include both applicants and current employees. Therefore, their mailboxes are troves of personal data. If this data leaks, many people could be harmed in a social, legal, or financial way. Their employer, in turn, will be fined by the corresponding data protection regulator for GDPR non-compliance. 

GDPR does not set specific email requirements to protect HRs or employers. However, companies should make security a top priority. This may include:

Question #9 – Double opt-in to prove consent is a must – true or false?

Short answer:

Where in the GDPR is this covered:

Long answer:

In the GDPR Recital 32, it is stated that “Consent should be given by a clear affirmative act….” The idea is to ask users to clearly indicate their confirmation. Examples of those acts are when a user ticks a box, chooses specific technical settings, and so on. 

For a double opt-in, a user has to perform two actions:

  1. A new subscriber clicks the Submit button 
  2. A new subscriber receives a confirmation email and has to click a link or button again to confirm his or her intention.

There are many good reasons to go this way, but this is not what makes you GDPR-compliant. When you ask users whether they want to subscribe to your emails, you must also request that they confirm their consent. For this, it’s not necessary to use a double opt-in. 

Question #10 – How does GDPR restrict email marketing automation? 

Short answer:

Where in the GDPR is this covered:

Long answer:

Email marketing automation allows marketers to save time and effort on regular activities. GDPR has nothing against this to the extent that it does not impact the subscribers’ consent. If you ask your users whether they agree to receive automated emails from you, everything is fine. But this consent must be GDPR-compliant, of course. 

Things might get trickier when you deal with automated decision-making. Let me explain. For example, you need to understand the users’ engagement. You’ve asked your subscribers and got their consent for receiving automated emails. Based on those automated emails, you got some inputs that were used to make a decision. Let’s say, you decided to adjust the subscription plan. If you ignored consideration with subscribers in this decision-making, you have stepped on thin ice. It’s non-compliant with GDPR. What you should have done is send a concomitant email to get a human reaction and then make a decision.

Question #11 – When does the GDPR apply outside Europe?

Short answer:

Where in the GDPR is this covered:

Long answer:

Why should a US-based startup have GDPR email compliance in mind? This regulation is all about personal data protection, so the focus is based on the location of users rather than of companies. If your products or services are marketed to EU citizens, GDPR comes into play. Let’s check out the following example:

You have a US-based moving services website. The focus is on your local area, let’s say Minnesota. It’s most likely that you use web tools for tracking cookies or the IP addresses of visitors. If you have visitors from the EU, you fall under the scope of the GDPR. 

But there are two exceptions:

To wrap up

To deal with the GDPR, you should treat it as a challenge rather than a block. The requirements in the regulation are not hard to meet. For sure, you have to invest more effort in your activities but the outcome is worth it. On the other hand, you can ignore GDPR and leave everything as is. But do you want to ride a tiger and become an outlaw for your subscribers? I don’t think so. You can handle this! Good luck!

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