Can someone tell me if this paragraph is, in essence, GDPR Compliant or not

[JamesBrown]

"By joining the forum you are giving us permission to send you a newsletter every week that may contain commercial messages along with the news.​

If you do not want to receive these messages, don’t join the forum.​

​

If you agree now, join, and then later change your mind you can always leave the forum and stop receiving same"​

Thanks

 

[Kirby]

IANAL this would not be compliant, the user has to have the option to opt-out from the newsletter while still keeping membership.

 

[JamesBrown]

IANAL this would not be compliant, the user has to have the option to opt-out from the newsletter while still keeping membership.

Surely its the owners right to refuse membership to those who don't want to receive messages?

 

[RobParker]

IANAL this would not be compliant, the user has to have the option to opt-out from the newsletter while still keeping membership.

Do they? As owner I can surely make it a requirement that anyone who wants to receive my service (i.e. post on my forums) has to receive my newsletter?

They're welcome to opt-out of the newsletter but that also opts out of the service. I'm surely under no obligation under GDPR to have to provide a service?

 

[Snog]

IANAL this would not be compliant, the user has to have the option to opt-out from the newsletter while still keeping membership.

I think you're interpreting opting out of advertisements as opting out of a newsletter. Those are two entirely different things.

As a part of a service a site owner can set the rules of membership as they wish. If receiving a newsletter (not advertisements) is required, the GDPR can't force them to continue to offer service without the newletter.

 

[Kirby]

As said before, I am not a lawyer - I can only repeat which legal advice we got to such questions.
If in doubt, the best the threadstarter should do is to get legal advice on his own.

 

[RobParker]

As said before, I am not a lawyer - I can only repeat which legal advice we got to such questions.
If in doubt, the best the threadstarter should do is to get legal advice on his own.

You got specific legal advise saying you HAD to continue to offer your service and weren't allowed to make receiving a newsletter a condition of that service?

 

[Kirby]

Yes, though that advise predates GDPR.

 

[S Thomas]

That's not how it works in Germany. We have something called Hausrecht and that can be applied to virtual spaces, esp. to forums. Therefore, your TOS are legitimated to deny and revoke access to your services in case someone does not accept your (non-ad) newsletter or opts-out at any given time.
I'd ask your lawyer in this specific context (Forum + Hausrecht) again.

 

[Davyc]

If your service can still be delivered without the newsletter which, if you are using XF it can be used without having to receive a newsletter, then forcing someone to allow this is not permitted. You have to allow the user to opt-in as opposed to opt-out; though the latter is still an option that has to be provided. If you Google do I need to get consent under the GDPR to send a newsletter, you may be surprised at the number of marketing services advising you to seek consent, in fact many recommend the double opt-in option. In many instances a newsletter is considered to be marketing. You'll see this appearing in services such as Mailjet and MailChimp as well as others who are used by many to send out newsletters.

The one thing that should be remembered by everyone is that your Terms and Conditions do not supersede law, rather they have to comply with the law and should be drafted with that in mind.

 

[JamesBrown]

If your service can still be delivered without the newsletter

Of course it could, but as long as owners don't exclude by race, age gender etc Then can they choose who can join their forum based on criteria of their choosing. Much like the nightclub.."You're not coming in wearing training shoes". If someone only wants members who agree to receive information by email then that is their legal choice is it not?

They would not be forcing anything on anyone, they could join and get newsletters or leave and they will stop. Why is that wrong?

 

[Davyc]

I don't say that I agree to everything the GDPR sets out to achieve, I'm merely pointing out that under the GDPR you have to allow people to make a choice as to whether they want to receive communications from you and by the same act you have to provide a means to opt-out if they earlier chose to opt-in. I don't write the laws, I'm merely trying to show you that what you are doing is not a requirement for you to deliver your services.

The GDPR states:

• Avoid making consent to processing a precondition of a service.

Your terms make receiving a newsletter a precondition of service. It's not always clear where to look, but the statements are there.

 

[Kirby]

Then can they choose who can join their forum based on criteria of their choosing.

Not necessarily if that involves their personal data

Article 21 (2) GDPR states
"Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing. "

So while it might be posible to force newsletter upon registration (I don't know if that is the case), users could always object to usage of their email address for marketing newsletters.

You could then probably ordinarily terminate their usage contract within the time agreed to in your terms of service, however you can't terminate it extraordinarily becuse of their objection.
You also can't deny them to make a new contract afterwards, eg. to sign up for a new account.

So my interpretation in a nutshell:
You can't force users to accept newsletters used for commercial advertisting/marketing.
If you only use them for real news (like announcing changed Terms of Service/Privacy Policy, Maintenance, etc.) that might be a completely different story.

 

[RobParker]

We're really interpreting that differently. Where does any of that say the subject has a right to continued use of the service?

 

[HWS]

It is more complicated (and easier, depends how you see it).

There are 3 different types of email communication. Each of them can be handled differently for GDPR.

1) Newsletters (marketing emails)
This has to default to OFF and you can't force anyone to receive it.

2) Transactional Messages (watch thread, etc)
This can default to ON, but the member needs to be able to disable them in the settings.

3) Important messages about your site (contractual communications between site and user account owner)
You can force the user to receive those messages if this is the way you communicate with your users. Member can't switch it off, needs to have the account deleted if those messages are not wanted.

So it is just a matter how you declare your email if someone complains (and the content of the message has to substantiate it).

 

[JamesBrown]

It is more complicated (and easier, depends how you see it).

I just think people are charging industry a lot of money make it sound as confusing complicated as possible.

I can’t see that the paragraph in the op forces anything on anyone.

 

[S Thomas]

I just think people are charging industry a lot of money make it sound as confusing complicated as possible.

I can’t see that the paragraph in the op forces anything on anyone.

Thought the same, but @Kirby pointed me to the catchphrase "commercial". If it wasn't for that, then yea, it would be absolutely legal to enforce the newsletter, but since it's a commercial newsletter, there has to be some kind of extra treatment.

 

[JamesBrown]

S

Thought the same, but @Kirby pointed me to the catchphrase "commercial". If it wasn't for that, then yea, it would be absolutely legal to enforce the newsletter, but since it's a commercial newsletter, there has to be some kind of extra treatment.

So are saying it’s illegal for someone to exclude another from a forum if they don’t want to have the newsletter?

 

[S Thomas]

Yep.
http://www.privacy-regulation.eu/en/article-7-conditions-for-consent-GDPR.htm
http://www.privacy-regulation.eu/en/r43.htm

 

[Woujija]

Is GDPR a good thing? It may be, I really have no clue. If not, we all officially live in Oceania under the thumb of Ingsoc.