This Article is written by Bhumi Soan of Government New Law College, an intern under Legal Vidhiya
ABSTRACT
The responsible management of personal data has become a critical concern in modern marketing practices due to increasing legal and ethical obligations. This article explores the global legal frameworks that regulate the collection, use, and protection of personal data in marketing, with a focus on key legislation such as the data protection frameworks established by the European Union (GDPR) and the state of California (CCPA) serve as major legal standards for safeguarding personal information. It outlines the definitions and classifications of personal data, emphasizing sensitive and legacy categories, and examines the rights of data subjects, including access, rectification, erasure, restriction of processing, and objection to direct marketing. The paper also discusses core principles such as data minimization, consent management, privacy notices, and data security measures. It highlights how these laws impact marketing strategies and the importance of transparency and accountability in data handling. Finally, the article considers future trends in privacy regulation in light of emerging technologies such as artificial intelligence, the Internet of Things, and blockchain, and compares international data protection approaches across jurisdictions including the EU, the US, Brazil, Canada, and Australia.
KEYWORDS
Personal Data, Data Privacy, GDPR, CCPA, Consent Management, Data Minimization, Data Subject Rights, Privacy Notices, Marketing Compliance, Digital Marketing Regulations, Data Security, Right to be Forgotten, Consumer Data Protection, Profiling and Direct Marketing, International Data Protection Laws.
INTRODUCTION
Handling personal data in marketing campaigns is a topic of legal and ethical concern in recent years. It has become crucial for marketers to manage personal data lawfully and understand data privacy requirements. A marketing agency must know when and how to collect personal data and comply with laws such as the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). This article aims to provide legal guidelines for managing personal data in the marketing sector on a global level.
(URZICEANU & PAŞCALÄ‚U, 2019)
UNDERSTANDING PERSONAL DATA
Personal data refers to any information that pertains to an individual who is either identified or can be identified. According to the California Privacy Rights Act, it means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. The General Data Protection Regulation (GDPR) adopts a similar definition but replaces the term “consumer” with “data subject.” Personal data includes direct identifiers such as name, identification numbers, location. (URZICEANU & PAŞCALÄ‚U, 2019).
Personal data can be classified into three types. First, sensitive personal data comprise information that reveals racial or ethnic origin, political opinions, religious beliefs, genetic and biometric data, health status, sex life, and sexual orientation. Second, legacy personal data refer to additional categories requiring protection that some U.S. states have incorporated into their laws; they include social security numbers, passport numbers, and biometric identifiers. Third, other personal data consist of all remaining types of personal information not covered by the first two categories.
LEGAL FRAMEWORKS GOVERNING PERSONAL DATA
Personal data provisions fall under various legal frameworks, including the EU’s GDPR (General Data Protection Regulation) and the CCPA (California Consumer Privacy Act). The GDPR applies to the processing of personal data of individuals in the EU and EEA and requires that personal data be protected from unauthorized or unlawful processing and against accidental loss or destruction. The CCPA focuses on the personal data of California residents, obliging commercial companies to disclose consumer rights and data practices and allowing consumers to request deletion of personal data collected in the prior 12 months
(Parlov et al., 2018).
General Data Protection Regulation (GDPR)
The scope of the General Data Protection Regulation (GDPR) extends beyond general personal data protection and encompasses specific provisions governing data usage within the domain of digital marketing. In a marketing context, GDPR compliance necessitates proactive consultation with legal departments prior to data collection activities. The regulation imposes stringent constraints on direct marketing and profiling endeavors, thereby compelling marketers to recalibrate campaign success factors accordingly. With an enactment date of 25 May 2018, GDPR supplants the Data Protection Directive 95/46/EC following a transitional period since its adoption in April 2016 (Parlov et al., 2018).
California Consumer Privacy Act (CCPA)
The California Consumer Privacy Act (CCPA), effective since January 1, 2020, enhances California consumers’ control over their personal information, extending stronger privacy protections than those available elsewhere in the United States (Samarin et al., 2023). The law mandates that qualifying companies disclose their data collection and sharing practices and respond to consumers’ requests to access personal information. Under the “right to know,” individuals can obtain information pertaining to them and verify compliance with privacy notices. Businesses typically uphold these principles by posting privacy policies and addressing “subject access requests.” The CCPA introduces stricter requirements and imposes heavier penalties for non-compliance compared to previous data-privacy regimes. When properly implemented, the “right to know” enables consumers to make informed decisions, correct inaccurate data, transfer information, and request deletion. Awareness of held information can also encourage the adoption of privacy-enhancing technologies. Nevertheless, certain drawbacks remain; for instance, difficulties in opting out of data sales and complex procedures are challenging for many consumers.
A business does not “sell” personal information if it shares data with a service provider solely to perform a business purpose—such as marketing or advertising services—provided it notifies the consumer and the service provider refrains from further collection, sale, or use of the information beyond what is necessary (Trimachi, 2019). The CCPA applies to businesses meeting at least one of the following thresholds: annual gross revenues above twenty-five million dollars; possession of the personal information of fifty thousand or more customers annually; or deriving more than fifty percent of revenue from selling consumers’ personal information. Under these definitions, the use of cookies to track and advertise based on personal data such as location or shopping history does not qualify as “selling” data. While the statute became effective on January 1, 2020, the Attorney General retains certain enforcement prerogatives, including establishing compliance measures and opt-out symbols. Enforcement may prove difficult, however, owing to vague provisions concerning business classification based on revenue, data volume, and sales.
CONSENT MANAGEMENT
Recital 42 of the GDPR emphasizes that when processing is based on a data subject’s consent, the controller should demonstrate that consent was given (A. Bonatti & Kirrane, 2019). The special solution addresses this by recording consent in a transparency ledger. Comparisons of consent descriptions to processing activity descriptions reveal that both specify the purpose of the processing. Encoding data-use descriptions in a machine-understandable form enables automation of GDPR-compliance tasks such as verifying restrictions on sensitive-data processing, cross-border data transfers, and compatibility with the legal basis. The transparency ledger can furnish data-subject dashboards for monitoring data use. Consent may be requested upfront, covering all potential processing variants, or dynamically at the time of each operation. Anonymization techniques combined with consent mechanisms tend to boost opt-in rates and enhance user privacy. The structures of activity records and consent forms—termed simple (usage) policies—typically include properties such as purpose and data categories. Scientific research contexts, where purposes cannot be fully defined in advance, may require full usage policies. For instance, the company BeFit obtains explicit customer consent to process biometric data and share location information for specified durations and purposes.
Digital-service personalization advances owe much to low-cost data collection and processing. New privacy regulations like GDPR and CCPA require organizations to explicitly state their data practices in privacy policies (Robol et al., 2022).
The evolution of consent mechanisms consequently poses challenges to ensuring GDPR compliance. A formal consent framework facilitates the understanding of policy evolution within systems that allow both retroactive and non-retroactive granting and withdrawal of consent. The framework models data-collection and data-access scenarios, employs a scripting language to represent different use cases, and monitors policy violations in real time as data practices evolve. Evaluations through use cases and scalability tests demonstrate the framework’s efficacy.
DATA MINIMIZATION PRINCIPLES
Data minimisation constitutes a recognised pillar of personal data regulations. It necessitates that data collection be confined to amounts strictly necessary for the specifically consented purpose (Antignac et al., 2016). A program encapsulating the intended purpose may be preceded by a data minimiser, which pre-processes input to reduce information exposure without impairing functionality. Various mechanisms and architectures can enforce this property, and procedures exist to synthesise appropriate data minimisers for arbitrary programs.
Personalisation scenarios such as recommender systems and search engines accumulate extensive user interaction logs. Nevertheless, substantial evidence suggests that comparable quality is attainable with only a truncated history or shuffled records (J. Biega et al., 2020). As standard data minimisation rules prescribe storing solely data needed for processing, the absence of explicit regulatory guidance beyond immutable attributes leaves alignment uncertain. Formalising purpose limitation and data minimisation through correspondence to configurable performance targets enables characterization of acceptable retention levels. Specialisations include per-user minimisation for an overall mean criterion and guarantees of target-level delivery on an individual basis. Experimental results demonstrate that high-quality personalisation persists under substantially reduced data regimes, albeit the optimal policy selection remains algorithm-dependent. Although global minimisation remains a viable option, aggregate objectives risk hiding heterogeneous individual consequences.
DATA SUBJECT RIGHTS
Individuals to whom personal data pertains have specific rights concerning their data. They have the right to be informed about how their data is used, which implies that controllers must communicate clearly the purposes, recipients, and duration of data processing. Additionally, data subjects can request access to their personal data, especially when used for profiling. When access to a created profile could reveal trade secrets or intellectual property, restrictions may apply. Data subjects are entitled to rectification where personal data are inaccurate or incomplete and can also seek the erasure of their data without undue delay. The right to restrict processing allows individuals to limit the way their data are handled, and they can object to processing, particularly if it is based on legitimate interests or used for direct marketing and profiling operations. Controllers must then provide a clear and unambiguous response (Parlov et al., 2018). These rights underpin the need for transparency and accountability in data processing and are central to ensuring that individuals maintain control over their personal information (URZICEANU & PAŞCALÄ‚U, 2019).
Right to Access
The right to access furnishes the data subject with a copy of the personal data under processing and with any additional information laid out by the applicable law. The right of access may be extended by the data subject to flavour the scope of data statistics, figures or other specific characteristics of the data processing aiming to clarify the source and the purpose of the processing operation (Parlov et al., 2018).
Controllers are bound to clearly inform the data subject about the processing of their personal data in simple terms. The data subject has the right to access personal data used for profiling and to access the created profile, with explanations on data usage. Restrictions apply to protect trade secrets or intellectual property, limiting access to created profiles in certain cases. . The right to erasure enables data subjects to request personal data be deleted without undue delay. Data subjects have the right to object to processing, especially if based on legitimate interests or for direct marketing and profiling purposes. Controllers must clearly and unambiguously enable the right to object and justify legitimate interests with a proportionality test, balancing business interests against the data subject’s rights.
Right to Rectification
Individuals remove data they control for commercial reasons, for example, to avoid a certain article in the press or from social media. This raises the question of allowing a person regular access to edit entries about themselves that appear in various internet-based datasets. Google has piloted a scheme to protect users from harmful and misleading suggestions and information, the so-called Google „right to be forgotten” project, where individuals find the information to be edited, they fill in the form, and a review team checks each individual request against the policies.
Any untrue or misleading information on any customer should be updated to retain the free flow of personal information with correct answers. The company WebAnswers.com allows customers to edit any responses other users have posted in their name, and has developed a system to provide a portion of control over the form and substance of what is said about a person. When the company first started, they employed professional editors to correct the work but later invited other contributors to fix the Wikipedia entries. In both cases, edits are checked and rated by other members of the community. The assumption is that everyone both wants and deserves their online reputations to be as honest, factual, and complete as possible.
Right to Erasure
The right to erasure—often called the “right to be forgotten”—gives individuals the ability to ask for their personal data to be removed in certain situations. Marketers are generally required to honor such requests, unless keeping the data is essential for reasons like upholding freedom of expression and information, meeting legal obligations, or serving the public interest, especially in areas like public health or research. in the public interest in matters of public health; for archiving in the public interest, conducting scientific or historical research, or carrying out statistical analysis; or for the establishment, exercise, or defense of legal claims.
The subject can make the request orally or in writing, at any time and free of charge, for any marketing media or channel of communication. Following the request, marketers must erase the data without undue delay; inform other controllers to erase links or copies in the event of public disclosure; communicate the erasure to any recipients to whom the data have been disclosed; ensure that the erasure of data does not affect processing that is necessary for freedom of expression and information; and refrain from refusing the deletion request on the grounds that the data subject should have previously deleted the data oneself.
Deletion of personal information comes with the cost of lost information, which may affect machine-learning systems. (Dam et al., 2023). The impact depends on the amount of data deleted, dataset characteristics, and deletion biases.
Right to Restrict Processing
Restricting processing is a data subject right under GDPR, GRCPR, and CCPA. The reason for restricting processing of particular personal data can differ, so legislators have specified those reasons in their respective laws and regulations. For example, GDPR allows processing of personal data in the course of legitimate interests of the controller or third in general, but in certain circum-stances, legislators specify that a data subject can request restriction of certain types of processing for some specific data. In such cases, the personal data will still be held by the data controller, but processing of the data will be limited to certain operations only (e.g., storing, receiving, protecting). Key marketing practices related to these requirements include: implementing a mechanism to record the restriction of specific personal data; blocking the execution of non-storing, non-protection operations on restricted personal data; allowing the withdrawal of such restrictions whenever eligible.
Information supplied by the user may be shared with associated companies for marketing purposes only if processing for those purposes has previously been explicitly authorised.
PRIVACY NOTICES AND TRANSPARENCY
Effective personal data management necessitates clear and coherent privacy notices that promote individual understanding and foster trust.(Parlov et al., 2018). A privacy notice is an external document, typically provided to individuals before they submit their personal data to an organisation. It should explain etc.
DATA SECURITY MEASURES
When engaging in the processing of personal data for marketing purposes, it is important to maintain measures aimed at safeguarding the security of the data. Such measures serve to impede unauthorized access to the data, as well as unauthorized deletion, impairment, alteration, or disclosure of the data
(Parlov et al., 2018). In the event that a personal data breach occurs, the data controller (the entity responsible for determining the purposes and means of the processing) must promptly undertake actions to investigate and assess the scope of the breach. Subsequently, the data controller must notify both the relevant supervisory authority and the affected data subjects (commonly consumers or end users of the goods or services) about the breach. To facilitate the adequate management of personal data breach incidents, data controllers should implement a dedicated plan aimed at mitigating the risks arising from such incidents. The plan should encompass the adoption of specific procedures tailored to the categories of personal data breach and the defined scenarios regarding the nature of the incident.
MARKETING STRATEGIES AND COMPLIANCE
Marketing communications help firms increase sales by attracting and engaging customers, and by reinforcing relationships to increase loyalty. The growth of internet-based marketing platforms has expanded opportunities for businesses to connect with consumers. The increased use of customer data to shape messages almost always necessitates consent. Numerous regulations, including the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), address firms’ use of data to ensure that consumers remain in control as data are used throughout the marketing process. Most regulations specify that transmitters must obtain consent before a firm can send commercial electronic messages. These laws also typically forbid “harvesting”, in which firms gather addresses from sites on the web without the owner’s permission. While firms typically must obtain confirmed opt-in consent before sending messages, legal frameworks embody other specifications about content, frequency and opt-out procedures. Social media platforms are tailored to meet most of these requirements, but it can be challenging to ensure that content aligns with the still-developing guidelines, particularly in the case of privacy law. Even in the absence of comprehensive privacy regulations for each region, laws governing electronic communications and promotional content tend to clearly specify the conditions under which firms can use information obtained from social media platform users (Quach et al., 2022) (Parlov et al., 2018).
FUTURE TRENDS IN DATA PRIVACY
Continuous evolutions of technology and legislation create new challenges and solutions for privacy and data protection. Within the marketing area, technological developments such as blockchain, artificial intelligence, and the Internet of Things give way to new data-processing techniques and distinct forms of consumer surveillance. At the same time, the legal framework is being developed at national, regional, and international levels to keep pace with these developments and provide regulatory clarity. To navigate this complex and evolving landscape, marketers can review an overview of key data-protection legislation, guidelines, and requirements that govern the use of personal data in marketing communications. An examination of the key concepts, coverage, application, and development of, for example, Europe’s the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Australia Privacy Act (APA), the Brazil General Data Protection Law (LGPD), and the Personal Information Protection and Electronic Documents Act (PIPEDA) reveals the main principles on which these four sets of law are based and the central elements that comprise them. It also enables a discussion of the different approaches, standards, and trends regarding the protection of personal information in a marketing context. (Quach et al., 2022)
CONCLUSION
The management of personal data in marketing is no longer a mere operational choice but a legal and ethical imperative shaped by evolving global regulations. As demonstrated, laws like the GDPR and CCPA set strong foundations for data protection, emphasizing transparency, consent, data minimization, and the rights of individuals. Marketing agencies must adopt compliant practices that respect consumer autonomy while balancing innovation and personalization. A failure to uphold these standards not only invites legal consequences but also risks consumer trust, which is increasingly tied to privacy expectations. In an era where digital marketing is driven by data, the future lies in strategies that prioritize lawful, responsible, and human-centric data use. Continued attention to legislative developments, technological implications, and ethical standards will be essential for marketers operating in a dynamic global environment.
References
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