Over the past few months, arts and entertainment audiences have seen their inboxes fill up with oddly worded emails from the organizations they support asking for complicated actions to update contact preferences and re-confirm their interest in receiving communications.

These audience members may be frequent attenders, perhaps even donors, with venue or customer relationships going back decades. Despite what they assumed was a long-standing and warmly held relationship, they are now being told this isn’t enough to keep hearing from the organizations they thought they knew.

They must take action ― in some cases quite confusing and complicated ― if they ever want to hear from us again. Worse yet, they may have received an email like this and not opened it due to a busy week or overactive SPAM filter.

Why are we vexing customers this way? The answer lies in a potential misreading of GDPR. Under the new rules, the consent customers gave to receive communications in the past may no longer meet tightened requirements. Though customers may have been happy to receive emails and had been given the option to opt out every time, some organizations are now under the impression ― sincerely held ― that they will no longer have legal permission to contact current customers after May.

Arts and entertainment organizations could be putting their customer relationships at risk with this "re-consent" approach.

Though the arts sector has historically relied on a consent-based approach to marketing and fundraising communications, this is not the only option available to legally and respectfully contact customers and donors. It may not even be the best option for either the organization or the individual. Thankfully, there’s another legal basis that we believe is likely suitable for marketing and fundraising communications, called "Legitimate Interests."

The UK Information Commissioner's Office has recently said that Legitimate Interests "may be the most appropriate basis … when you do not want to give the individual full upfront control or bother them with disruptive consent requests when they are unlikely to object to the processing."

We would argue that it’s reasonable to expect that customers and donors who have been happily receiving communications from you for months or even years, will be happy to continue receiving them. In fact, it’s very likely they will be confused if they suddenly stop. Why put your relationships with your customers and donors in jeopardy?

When considering a strategy to switch your basis for direct marketing and fundraising communications from consent to legitimate interests, it’s important to know that there are additional considerations when it comes to email, phone and text messages due to another data protection regulation called PECR (the Privacy and Electronic Communications Regulation). In our view, however, nothing in GDPR or PECR says that you need to obtain renewed consent for customers who are likely still expecting to hear from you.

For direct fundraising, a Legitimate Interests basis will likely allow continued communications for post and most phone (if you check the Telephone Preference Service). Depending on your reading of PECR, you may need to regain consent to email about fundraising. However, doesn’t it make more sense from a donor point of view to ask for that consent in context — perhaps when the donor calls the box office or the next time they make a gift online? For key major donors and prospects, it is even more vital not to bury consent requests in busy inboxes, and picking up the phone may be the best option.

Whatever communication strategy we do chose, it is important to start from the perspective of the customer and/or donor. These consent update emails are confusing, and though they were sent with the best of intentions from organizations trying to be GDPR compliant, they can convey a lack of care for relationships with devoted customers and donors. There are also obvious and concerning revenue implications should you lose the ability to contact large parts of your customer-base.

Our suggestion is that arts organizations consider moving from a consent-only approach for communication strategies to a more nuanced, customer-centric one that allows for greater flexibility and doesn’t disrupt important relationships.

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