“The maxim of the law is ‘Silence gives consent’. If therefore you wish to what my silence betokened, you must construe that I consented, not that I denied.”
These words from Robert Bolt’s play A Man for All Seasons, are attributed to St Thomas More, who until his fall from grace was King Henry VIII’s top PR man in Europe, spinning on his behalf against the Reformation threat of Martin Luther. Ultimately More’s appeal to the silence of consent was not enough to save him in the matter of Henry’s supremacy and some 480 years later this legal principle is being lined up for the chop in a move that could prove equally treacherous for the modern day PR practitioner.
In April last year a new EU regulation, the General Data Protection Regulation, or GDPR, was adopted to harmonise data privacy laws across Europe and to give individuals greater control over how others use their personal data. The GDPR will become enforceable from 25 May 2018, and despite the shadow of Brexit looming, this will still impact UK citizens as the Government has adopted this regulation into new UK data protection legislation being put forward to replace the current Data Protection Act.
The new UK Data Protection Bill proposes a host of measures for consumers, allowing them to know who is collecting their data, what is being done with it and who it will be shared with. It provides consumers with the right to be forgotten, the right to access to the data held on them, and additional security around data processing and the requirement to report data breaches to affected individuals.
One other aspect that is likely to impact the PR & IR industry, or in fact any business that engages in email marketing, is the need for “explicit consent” and for this consent to “freely given, specific, informed and unambiguous”, not hidden behind some lengthy legal terms and conditions. It also demands that any consent be verifiable, so anyone holding data needs a record of the explicit consent, and also the law would ensure that consent can be easily withdrawn. Suddenly consent is no longer silent; for new-world spinners and marketeers, consent needs to be very loud and very clear.
Most communications professionals, be it PR or IR, might be tempted to think this won’t apply to them and that it’s a problem for their counterparts in the marketing world, but if you consider companies that are taking shareholder communications seriously, like Yorkshire medtech Surgical Innovations, then their communications agents will be increasingly gathering information from interested parties, be it journalists, analysts or investors and distributing information to them. As Surgical’s communication adviser I know that their IR strategy is targeted and that news alerts and updates are only sent to those who have consented, but I fear that there is a danger that some companies will still employ a scattergun approach to PR & IR.
Most are aware that distributions lists cannot be cross-populated; so we couldn’t, for example, add someone to a Surgical Innovations investor alert list who had registered an interest in a different client. But one danger that could present itself is the continuing practice by many firms of firing press releases to all and sundry in the media in the hope that something will stick. In itself this is poor practice, but it will soon become a far more costly way of working should a particularly grumpy journalist (god forbid) demand to know how they ended up on your
distribution and where the record of consent is.
Under these new laws if these emails are unsolicited then the companies behind them can be fined up to an eye- watering €20m, not quite as harsh as being hung, drawn and quartered like Sir Thomas More, but certainly big enough for communication professionals to remember that consent is no longer silent.