In connection with the balancing of interests, the DDV has drawn up several individual questions in order to clarify the problem and show the scope for action.
“What role does the expectations of the people affected play?”
Transparency is the key to dialogue marketing so that there are no negative surprises. It is therefore important to provide information in the data protection declaration that processing takes place as part of dialogue marketing. If a data subject does not have to expect that their personal data will be processed, their interests may prevail and processing may not be permitted.
Another use case is publicly accessible personal data. Here, the person concerned must expect that the data will be processed. In this case, it is also in line with the experience of the person concerned that confidential treatment is unlikely.
“Can children and young people be advertised?”
“Is profiling as a selection technique inadmissible?”
“May particularly sensitive data be processed for the purposes of dialogue marketing?”
“What are the limits for electronic communication via email and telephone?”
"Limits of the Balancing of Interests Clause"
The balancing of interests clause existed before the GDPR and has practically not been changed. Nevertheless, the question of when data processing for advertising purposes is permissible under the balancing of interests clause always arises. This is answered in the guidance provided by the data protection supervisory authorities.
For example, advertising mailings to customers without selection are permitted.
Intrusive measures such as automated selection procedures that lead to additional information about the person concerned are not permitted.
The European Data Protection Authority provides examples of this in its guidelines:
For example, the use of customer addresses for sending advertising is permitted
However, the balancing of interests clause no longer covers colombia phone number data the intrusive use of detailed data. For example, if various user and activity data are evaluated and the person concerned is then sent advertising tailored to his or her habits and preferences without user-friendly information and the possibility of preventing this, this is not permitted.
"Implementation of the balancing of interests"
According to DDV, the balancing of interests clause can “ justify the processing of personal data if there are legitimate interests of the controller or a third party. When processing data for the purposes of dialogue marketing, the legitimate interest of the advertising company is to be able to offer its goods and services .”
This refers to the company's economic interest in attracting interested parties, potential customers and existing customers. Due to the publicly recognized status of non-profit organizations, the balance of interests may be somewhat more in favor of the organization that is seeking donations or members.
When balancing interests in dialogue marketing, the weighting of the interests of the data subject with regard to their own personal data is crucial. However, this does not include the economic interests of the data subjects. The level of intervention in terms of data protection in data processing is therefore crucial. Address processing in dialogue marketing, for example, only allows a low level of intervention. The question therefore arises as to whether the data processing, which is selected in dialogue marketing, has a particular impact on the potential addressees. It is important to consider how detailed and sensitive the data in question is. The question also arises as to whether there are specific circumstances or measures that mitigate the sensitivity of the processing. According to the DDV, the following aspects can be taken into account: