Defining Consent in a Post-GDPR World and Why You Should Use It

Please note: The information and opinions within this content are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

As marketers all know, GDPR is changing the game when it comes to the collection and use of end user data from EU consumers. We’ve collected some insights from our compliance and legal team at Rakuten Marketing to help increase awareness and knowledge behind the purpose of GDPR and how best to move forward with gaining and processing EU consumer data.

1. Why the GDPR was created

To start off, it’s important to remember why the GDPR was created in the first place. That way organisations can align themselves with the goals and standards of the regulation. As stated in our Introduction to the GDPR post, the European Parliament, the Council of the European Union, and the European Commission implemented this regulation with the intention to give consumers more control and visibility of how their personal data is collected and used.

On May 25, 2018, the GDPR goes into effect and all organisations worldwide collecting and processing personal data from EU consumers must be in compliance. To put it simply, the GDPR is set to increase transparency between companies and the consumers they’re collecting data from. Through GDPR, industry leaders can advocate for a consistent consumer experience and improve consumer sentiments about online advertising.

2. Why choose consent

For a business to collect and process personal data on an EU consumer, it must be based on either consent, contract, legitimate interest, or legal obligation/public interest. We at Rakuten Marketing recommend that publishers and advertisers gain consent for two reasons:

1. It will give advertisers and publishers deeper insights into the user-journey and customer behaviour.
2. To prepare for future EU legislation which is likely to mean that legitimate interest will not be a viable option from 2019 onwards.

As a marketer, it’s essential to remember what the purpose of marketing is all about…the consumer. Consumers want ads that are relevant to them, whether they realise it completely or not. According to a Zogby Analytics survey, American consumers assign a value of about $1,200 per year to the assortment of services that advertising gives them. This demonstrates that consumers really do value advertising. In addition, our Save the Web data has revealed that they prefer it to be personalised to their interests and needs (65% of surveyed global consumers stated so).

By tailoring ads to consumer interests and needs, ads can be created that are beneficial and align with consumer values and desires rather than delivering ads that are irrelevant, which will increase the overall consumer online experience. A step in being able to create these kinds of ads is through consumers consenting to have their data processed. The data gained through consent enables richer, deeper data than what would be collected just through legitimate interest. With this fuller data, you can bring value to a consumer through advertising that is tailored and beneficial, just as our insights have shown consumers prefer it to be. Consent also allows publishers and brands to leverage data to customise and personalise the shopping experience for their customers. Furthermore, most brands and publishers don’t solely operate in an affiliate channel, but rather leverage a multi-channel approach (display, video, social) for monetisation of their sites. Having a unified approach allows the consumer to have a more seamless experience. Improved experiences will result in higher performances for advertisers, publishers and brands.

3. A more transparent “consent”

Pre-GDPR, the inconsistent interpretation of “consent” has made it possible for advertisers and publishers to create what is known as an “ambiguous cookie banner.” Some examples of the ambiguity behind these cookie banners are:

• Banners being buried out of sight from a consumer (bottom of the page)
• Banners containing font sizes and/or colouring that makes it difficult for consumers to read (grey background, black font)
• Consent being completely implied – meaning as soon as a consumer lands on the website, before ever doing anything, the company would already be collecting the consumer’s data
• Furthermore, notice of this collection of data wouldn’t be made knowledgeable to the consumer until after the fact, in the form of one of the above examples of an ambiguous cookie banner

All of these factors contribute to an ambiguous form of consent that will be eliminated post-GDPR. In giving consumers more control and transparency of their data, the GDPR will redefine what is required to get consent. Businesses will now need to gain clear and comprehensive, unambiguous consent from a consumer before processing any data, and this “unambiguous consent” will be defined by Article 4(11) GDPR, which states:

“’consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”

In other words, the GDPR will end the ambiguity of what gaining consent has entailed by requiring banners to be clearly viewable and requiring a consumer to undoubtedly signify their agreement to have their data processed. Although some interpret this new law to be “the end of cookies as we know it,” what it really means is requiring businesses to take a more sophisticated approach in gaining and processing data than what has been happening in the past.

4. The Rakuten Marketing Commitment

As stated previously, we at Rakuten Marketing are recommending that our publishers and advertisers gain consent. However, we are also differentiating ourselves by using a consistent methodology across all channels. By doing this, we are committed to creating connected and consistent consumer experiences when moving from one channel to the next. This consistent collection methodology will enable us to gain quality data and deliver relevant and helpful ads that give consumers positive experiences with brands and their advertisements or placements. This dedication will result in higher performance for our advertisers and publishers.