In/acceptable Marketing and Consumers' Privacy Expectations: Four Tests from EU Data Protection Law

Abstract

Purpose – This research aims to discover the legal borderline between licit online marketing and illicit privacy-intrusive manipulative marketing, considering in particular consumers’ expectations of privacy.

Design/methodology/approach – A doctrinal legal research methodology is applied throughout with reference to the relevant legislative frameworks. In particular, the article analyses the EU Data Protection Law (GDPR) framework (since it is one of the most advanced privacy laws in the world, with strong extra-territorial impact in other countries and consequent risks of high fines), as compared to privacy scholarship on the field and extract a compliance framework for marketers.

Findings – The GDPR is a solid compliance framework that can help to distinguish licit marketing from illicit one. It brings clarity through four legal tests: fairness test, lawfulness test, significant effect test, and the high-risk test. The performance of these tests can be beneficial to consumers and marketers in particular considering that meeting consumers’ expectation of privacy can enhance their trust. A solution for marketers to respect and leverage consumers’ privacy expectations is two-fold: enhancing critical transparency and avoiding the exploitation of individual vulnerabilities.

Research limitations/implications – This research is limited to the European legal framework scenario and to theoretical analysis. Further research is necessary to investigate other legal frameworks and to prove this model in practice, measuring the consumers’ expectation of privacy in different contexts, but also the practical managerial implications of the four GDPR tests for marketers.

Originality/value – This paper originally contextualizes the most recent privacy scholarship on online manipulation within the EU legal framework, proposing an easy and accessible four-step test and two-fold solution for marketers. Such a test might be beneficial both for marketers and for consumers’ expectations of privacy.

Keywords: Privacy; Data Protection; GDPR; Manipulation; Fairness; Lawfulness; Marketing