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CAP Code's new data rules following GDPR


United Kingdom

The CAP Code's rules relating to data have been revised to align with the standards set by the GDPR.

Following the General Data Protection Regulation (EU 2016/679) (the "GDPR") coming into force earlier this year and a subsequent public consultation by CAP, CAP has now introduced new rules on the use of data for marketing to align with the standards set by the GDPR and  to ensure that its rules cover data protection issues most relevant to marketing.

The existing rules in the CAP Code covered in Section 10 (Database practice) and Appendix 3 (Online behavioural advertising) were suspended on 25 May 2018 pending the outcome of the consultation.

Following an informal pre-consultation with the Information Commissioner's Office ("ICO") and responses to the consultation, CAP has removed rules covering "pure data protection matters" from Section 10 of the CAP Code, deleted Appendix 3 from the CAP Code and retained those Section 10 rules that are likely to attract an expectation of regulation by the UK's advertising regulator. In addition, a number of changes have been made to Section 10 to ensure it aligns with the GDPR.

The new Section 10 will be in effective immediately and is subject to a 12 month review. The ASA has indicated that it is likely to take a more informal approach to resolving matters relating to these changes, but has reserved the right to exercise more formal powers to deal with cases where a formal ruling would be in the public's and sector's interest. In deciding this, the ASA will consult with relevant bodies.

The Direct Marketing Commission, an independent industry watchdog, will be used as an expert panel by CAP and the ASA to provide advice on cases where "legitimate interests" has been put forward as a basis for processing personal data for the purpose of producing and/or distributing a marketing communication and related matters. Under the GDPR and the updated Section 10 rules, marketers must provide consumers with their "legitimate interests" where processing of personal data is based on those interests. Consumers then have a "right to object" to such processing.

CAP is also carrying out an additional consultation on matters that have arisen during the current consultation in two areas: marketing to children; and publication of prize-winners’ names (our blog on the suspension of rule 8.28.5 in relation to the publication of prize-winners’ names can be found here). This consultation will be published shortly and will last for four weeks.

CAP's regulatory statement on the new rules can be found here.

For more information on this topic, please contact Sonal Patel Oliva or your usual contact within Fieldfisher's Brand Development Team.

Co-authored by Dominic Tyler.

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