Legitimate Interest vs. Consent in B2B Marketing

Silvio Bonomi
Nov 14
15 min read

When marketing under GDPR, you must decide between legitimate interest or consent to process personal data. Here's a quick breakdown:

Legitimate Interest: Allows outreach without prior permission if the contact would reasonably expect it (e.g., emailing a business professional about relevant services). Requires a three-step test: purpose, necessity, and balancing individual rights.
Consent: Requires explicit, informed, and unambiguous permission before using someone’s data. This is mandatory for personal email addresses (e.g., Gmail) or when ePrivacy laws demand it.

Both approaches have strict rules, and picking the wrong one can lead to fines, legal risks, or loss of trust. Tools like CRMs help track legal bases, manage opt-outs, and keep records clean. For compliance, always document your decisions, honor opt-outs promptly, and follow local laws like ePrivacy regulations.

Key takeaway: Use legitimate interest for professional contacts with business emails when relevant; use consent for personal emails or stricter jurisdictions (e.g., Germany). Always provide opt-out options and maintain clear records.

In B2B marketing, consent means you must ask before you use someone’s data for your sales work. This is a rule under GDPR, which is a law in Europe. You need clear “yes” before you can email, call, or send a message on LinkedIn. A person must choose to say yes - it cannot be quiet, by not saying anything, or by not doing something.

There’s more to it. People must be able to take back their “yes” just as fast and as easy as they gave it. This rule is a big part of GDPR’s strong grip on how you use data.

This is really key with people who use personal emails, such as Gmail or Yahoo, in their work. Plus, other laws that deal with online ads and reach-outs also need you to get this OK from users.

To count under GDPR, consent must meet four main points. If you miss one, the “yes” is no good.

Freely given: People must pick “yes” or “no” with no push or bad side if they say “no.”
Specific: The purpose must be clear, like joining a newsletter or getting invites for a talk.
Informed: People must be told who is taking their info, how they will use it, and what rights the person has.
Unambiguous: The person must clearly say “I agree,” like clicking a button or checking a box. If the box is checked for them or if they just don’t reply, it does not work.

The ask for consent should not be mixed with other terms and should be in basic words. Firms must keep full records. They need to show who gave consent, when and how, and what you told them. These files must be ready if the law comes to check.

Even with rules, getting and keeping consent isn’t always easy. One hard part is keeping your “yes” records up to date when people get new jobs. If someone said “yes” at their old job, that “yes” may not count at their new place.

Another issue comes when you switch up your marketing. If someone agreed to get news from you but then you want to invite them to try a new demo, you may need to ask for a new “yes.”

It is also key to act fast when people say “no” or take back their “yes.” Your systems - like your email tool, your CRM, and your outreach on LinkedIn - need to update right away so you don’t bother them by mistake.

If you use more ways to talk to people, like email, LinkedIn, and others, it gets even harder to keep all the records straight and in sync. As your contact list grows, it gets tougher to keep your data clean and make sure you stay in line with the rules.

The flow of getting consent can also make your marketing work slower. This may mean fewer replies and can make it hard to get new leads.

Some companies, like Artemis Leads, make strong systems to handle consent the right way. They use clear forms, keep sharp records, and work fast when someone opts out - across all ways they reach people. This helps them stay within the rules and also keep their work running well.

What Is Legitimate Interest in B2B Marketing?

Legitimate interest is a flexible legal basis under GDPR that allows B2B marketers to process personal data without needing explicit consent upfront. This approach is permitted as long as strict safeguards are in place to protect individuals' privacy.

Under Article 6(1)(f) of GDPR, legitimate interest is one of the broadest legal grounds for processing personal data in business contexts. It applies when you use someone’s information in ways they would reasonably expect - especially in professional settings where business communications are common.

Unlike consent, legitimate interest doesn’t require you to obtain explicit approval. Instead, you need to demonstrate that your business purpose is valid and doesn’t override the privacy rights of the individual. This makes it particularly useful in B2B marketing, where professional outreach is often anticipated.

In 2023, the Court of Justice of the European Union clarified an important point: commercial interests can qualify as legitimate interests under GDPR, provided all required steps and tests are followed. For B2B marketers, this means you can legally contact decision-makers to promote your services, schedule meetings, or share relevant business updates - without first obtaining their permission. But with this freedom comes responsibility.

The 3-Part Legitimate Interest Test

Before relying on legitimate interest, businesses must pass a three-step test. Think of it as a checklist - if you fail any part, you can’t use legitimate interest as your legal basis.

The Purpose Test: Start by identifying a specific and lawful business objective that’s real and immediate. For example, promoting your services to decision-makers, following up with existing clients, or connecting with companies that might benefit from your solutions are all valid purposes.
The Necessity Test: Next, prove that processing personal data is essential to achieve your goal. For instance, if you’re reaching out to arrange a sales meeting, you need the prospect’s contact information to make it happen.
The Balancing Test: Finally, weigh your business interests against the individual’s privacy rights. This is often easier in B2B than B2C, as business contacts generally expect professional outreach - especially when it’s relevant to their role or industry. For example, a company like Artemis Leads, which specializes in B2B lead generation, might email decision-makers about services that could help their business grow. The purpose is clear, the data use is necessary, and the outreach aligns with professional expectations - especially when clear opt-out options are provided.

Benefits of Using Legitimate Interest

One of the biggest perks of legitimate interest is that you don’t need explicit consent to start your outreach. This removes delays tied to obtaining consent, making your lead generation efforts more efficient.

Legitimate interest also offers ongoing validity for communications. Unlike consent, which can expire or require renewal, legitimate interest remains valid as long as your purpose and circumstances stay consistent. This is especially helpful for nurturing long-term business relationships.

Another advantage is its broad applicability. You can use legitimate interest across multiple channels - like email or LinkedIn - as long as you comply with other relevant laws. This means you can target your ideal customer profile more comprehensively, without worrying about gaps in consent.

It also allows for a more natural and personalized approach to business development. You can follow up with interested prospects, maintain professional connections, and build relationships without needing to repeatedly ask for permission. This makes the process feel less formal and more in tune with how businesses typically operate.

However, this approach does come with additional responsibilities. You’ll need to document your legitimate interest assessments thoroughly and be prepared to demonstrate compliance with the three-part test if regulators ask. It’s also critical to honor opt-out requests immediately and ensure that objecting is as easy as the initial contact.

Consent and legitimate interest are both valid legal bases under GDPR, but they function in very different ways, especially when it comes to lead generation and outreach. The key distinction lies in timing and control.

With consent, you need explicit approval before any marketing contact begins. This means individuals must actively opt in through forms, checkboxes, or direct requests. On the other hand, legitimate interest allows you to initiate contact first, provided you give recipients the option to opt out.

Side-by-Side Comparison Table

Aspect	Consent	Legitimate Interest
Documentation Needs	Requires clear, affirmative action; specific, informed, and unambiguous evidence	Requires assessment of interest, necessity, and balancing test documentation
Duration	Valid until withdrawn by the individual	Valid until objection or a change in circumstances
Flexibility	Limited to specific and informed purposes	More adaptable but must be assessed on a case-by-case basis
Data Subject Rights	Individuals can withdraw consent at any time	Individuals can object to processing at any time
Compliance Requirements	Must comply with e-privacy laws and obtain prior permission	Must comply with e-privacy laws and pass a three-part test
Burden of Proof	Organization must prove consent was obtained	Organization must prove legitimate interest assessment
Marketing Initiation	Cannot begin without explicit permission	Can initiate outreach but must honor objections

Each legal basis requires different types of documentation. Consent relies on proof of an affirmative action, while legitimate interest demands a thorough three-part test assessment. The rights of individuals also differ. With consent, people can withdraw at any time, and you must stop processing immediately. Under legitimate interest, individuals can object to processing for direct marketing purposes, and their objection overrides your interest entirely, as outlined in Article 21 of GDPR.

These differences shape how you manage records and determine the best legal basis for specific outreach efforts.

When to Choose Each Legal Basis

Understanding these distinctions helps you decide which approach fits your situation. Your choice depends on factors like your audience, communication method, and regional regulations.

Legitimate interest works well for corporate contacts using business email addresses. For example, you can use this basis for outbound telemarketing or email marketing to company decision-makers, as long as you meet the three-part test. Take Artemis Leads as an example: they can email marketing directors about services, provided they include opt-out options and meet professional standards.

Consent, however, is required for individual subscribers or personal email addresses like Gmail or Hotmail. Legitimate interest does not apply here, regardless of other factors. Additionally, ePrivacy regulations in some jurisdictions mandate consent, even for B2B contexts. For instance, Germany’s Article 7 of the UWG requires consent for direct marketing via electronic means, regardless of GDPR rules.

The communication channel also plays a role. For email, SMS, or automated calls, you need to check the ePrivacy regulations in your audience's location. If consent is required under these rules, it overrides GDPR’s legitimate interest provisions.

Geography is another critical factor. While GDPR allows legitimate interest for B2B marketing, stricter e-marketing laws in many EU countries require opt-in consent, making legitimate interest inapplicable in those regions. This creates a complex landscape for marketers to navigate.

Once you establish a legal basis for a specific contact, you cannot switch between consent and legitimate interest. This makes your initial decision crucial. For multi-channel campaigns, you can use different legal bases for different segments - such as applying legitimate interest for existing business relationships and consent for new prospects - but this must be clearly documented and consistently applied.

ePrivacy Rules and Electronic Communications

When it comes to B2B marketing, GDPR lays the groundwork for data processing, but ePrivacy laws take precedence for electronic communications and impose stricter rules. According to Article 94 of the UK GDPR, ePrivacy regulations override GDPR in certain scenarios.

This means that before you can rely on GDPR's legitimate interest provisions, you must first meet ePrivacy consent requirements. These stricter rules clarify when explicit consent is absolutely necessary.

Consent is required for sending emails and texts to personal email addresses - such as Gmail, Hotmail, or Yahoo - even if the individual is acting in a business capacity. This applies universally, regardless of the recipient's role or intent.

Similarly, automated phone calls always require prior consent. This rule applies to all recipients, whether they are corporate or individual contacts.

However, there is more flexibility when it comes to emails sent to corporate email addresses. In some jurisdictions, you can rely on legitimate interest to send emails to business contacts using addresses like john.smith@acmecorp.com. The distinction lies in whether the recipient is a "corporate subscriber" (using a business email) or an "individual subscriber" (using a personal email or not connected to a business entity).

There’s also the "soft opt-in" exemption for existing relationships. This allows you to send marketing emails without explicit consent if the recipient has previously purchased from you or engaged in business dealings. However, this exemption only applies to marketing similar products or services, and every communication must include an opt-out option.

Geographic variations add another layer of complexity. For instance, Germany’s Article 7 of the UWG (Act Against Unfair Competition) requires consent for all direct marketing via electronic means, even in B2B scenarios. This effectively overrides GDPR's legitimate interest provisions. Other EU countries may enforce similarly strict rules that go beyond GDPR.

Compliance for Email and LinkedIn Outreach

To align your email and LinkedIn outreach efforts with ePrivacy rules, it’s crucial to tailor your approach for each channel. For example, email outreach to corporate contacts may rely on legitimate interest, but phone calls and LinkedIn messages often require explicit consent.

LinkedIn messaging occupies a regulatory gray area under ePrivacy laws. However, best practices suggest treating it like email: requiring consent for individual subscribers while allowing legitimate interest for corporate contacts.

When companies like Artemis Leads use multi-channel outreach strategies, they need to ensure compliance with ePrivacy rules for each channel. For instance, they might send an email to a corporate subscriber under legitimate interest but require consent before making an automated phone call to the same person.

To simplify compliance:

Classify each contact correctly. Ensure your database identifies whether a contact is a corporate or individual subscriber. Contacts with Gmail or Hotmail addresses but no company affiliation should be treated as individual subscribers, requiring explicit consent - even if they work in a business role.
Verify third-party data. If you source contacts from third-party providers, confirm that they’ve properly classified contacts and can verify corporate affiliations. When in doubt, obtaining explicit consent is the safest route.

Documentation is key for multi-channel campaigns. You’ll need to maintain records that justify why consent isn’t required for certain activities, such as proof that a recipient is a corporate subscriber with a business email address. Alternatively, document that you’ve obtained proper consent to meet ePrivacy standards.

For the most straightforward and compliant B2B outreach, securing explicit consent upfront is the best option. This not only simplifies managing different legal bases across communication channels but also ensures full compliance with both GDPR and ePrivacy laws.

Compliance Best Practices for B2B Marketing

Running compliant B2B campaigns isn't just about following the rules - it's about protecting your business while still reaching your audience effectively. This means having solid processes for documentation and managing data subject rights.

Record-Keeping for Legal Bases

Documenting legitimate interest assessments is a cornerstone of GDPR compliance. For each campaign, you need a clear, three-part test: identify your specific business interest (like direct marketing to corporate contacts), prove that processing is necessary for that purpose, and balance this against the rights of individuals. Each assessment should be detailed, covering the type of data, how it’s used, and the steps taken to minimize risks. Regularly review and update these records to stay prepared for regulatory inspections.

Consent records also require meticulous tracking. Keep logs that include the person’s identity, the time and method of consent, and the specific marketing activities covered. This ensures clarity and accountability.

Segmenting your database by legal basis is another smart move. Use legitimate interest for corporate contacts and consent for individual subscribers, and document how you determine these categories. This segmentation simplifies compliance and ensures your outreach aligns with legal requirements.

For companies like Artemis Leads, which handle multi-channel B2B outreach, a CRM system is invaluable. It should track consent and legitimate interest assessments, log when and how prospects are contacted (via email or LinkedIn), and automatically update contact statuses when opt-outs occur. This prevents accidental follow-ups and keeps your outreach compliant.

Regular compliance audits are essential to keep up with changing regulations. These audits should review your policies, ensure your practices align with the latest rules, and include ongoing staff training.

Strong record-keeping not only ensures compliance but also makes it easier to handle opt-outs and objections efficiently.

Handling Opt-Outs and Objections

Once your records are in order, managing opt-outs becomes straightforward. Addressing opt-outs quickly isn’t just a legal requirement - it’s also a good business practice. You should process these requests within a few business days, halt all marketing to the individual, and update your databases accordingly.

Make opting out easy with a one-click option. Whether it’s an unsubscribe link in emails or a simple reply option for LinkedIn messages, this ensures compliance and builds trust.

Log opt-out requests immediately and keep track of them. This approach not only keeps you compliant but also protects your sender reputation and fosters better relationships with prospects.

Delays or poor record-keeping can lead to serious consequences. Slow responses or missing records can result in fines, damage your reputation, and erode trust with your audience.

Automation is your ally in managing compliance. When a prospect opts out via email, your system should automatically update their status across all platforms - email, LinkedIn, and phone. This ensures no further outreach slips through the cracks.

In 2023, the Court of Justice of the European Union clarified that commercial interests, including economic benefits for data controllers, can qualify as legitimate interests under GDPR - provided you meet the three-part test. This highlights the importance of thorough documentation and balanced assessments when relying on legitimate interest for your B2B campaigns.

Industry data shows that businesses with strong compliance practices face fewer regulatory challenges and build greater trust with prospects. Honoring opt-outs promptly and maintaining transparent data practices can improve deliverability, boost engagement rates, and reduce legal risks.

Conclusion: Selecting the Right Legal Basis

Choosing the correct legal basis is a cornerstone of compliant B2B marketing. Whether you rely on legitimate interest or consent will shape how you approach your audience and structure your outreach efforts. Each option serves distinct purposes and carries its own set of responsibilities.

Legitimate interest is ideal for corporate outreach, especially when communications are relevant and anticipated. For example, reaching out to decision-makers at incorporated companies through their business email addresses allows for ongoing campaigns without needing explicit permission every time. That said, this approach requires a thorough three-part assessment to ensure compliance.

Consent, on the other hand, is essential when engaging with individual subscribers, sole proprietors, or in cases where ePrivacy rules mandate it for electronic communications. While consent provides a clear legal safeguard, it also adds administrative complexity and restricts outreach to those who have explicitly opted in. This makes it a more restrictive but necessary choice in certain scenarios.

A 2023 EU ruling clarified that commercial interests can qualify as legitimate interests, provided the three-part test is satisfied. This ruling gives B2B marketers more confidence in using legitimate interest for corporate outreach, particularly when communications align with recipients' expectations.

For companies like Artemis Leads, which use a combination of email and LinkedIn outreach to connect with decision-makers, it’s critical to evaluate the legal basis for each platform and audience segment. Generally, corporate contacts can be approached under the legitimate interest framework, while individual subscribers or specific communication channels may require consent.

To ensure compliance, integrate these considerations into your overall marketing strategy. Be transparent about your legal basis, document your decisions thoroughly, and always provide a clear opt-out option. Keep in mind: once you establish a legal basis for a processing activity, you cannot retroactively change it.

FAQs

Choosing between legitimate interest and consent as the legal basis for your B2B marketing comes down to the type of outreach you’re conducting and who you’re targeting.

Legitimate interest is applicable when your marketing efforts are relevant, reasonable, and don’t infringe on the rights of your audience. For instance, reaching out to professionals in their work capacity - like decision-makers - often qualifies under legitimate interest, provided your message aligns with their business needs.

Consent, however, becomes essential when your outreach involves personal or sensitive data or when you’re targeting individuals rather than businesses. It’s also required in cases where regulations like GDPR demand clear and explicit permission for specific marketing practices.

To stay compliant, make sure to document the legal basis for processing data and always include straightforward opt-out options in your communications.

What steps should I follow to ensure compliance when using legitimate interest in my B2B marketing strategy?

To use legitimate interest as a legal basis for B2B marketing, it's crucial to evaluate and document your approach thoroughly. Start by performing a Legitimate Interest Assessment (LIA). This helps determine whether your marketing efforts align with your business objectives without infringing on the rights or expectations of the individuals you’re targeting. Essentially, it’s about striking a balance between your business goals and the privacy concerns of your audience.

Focus your outreach on being targeted and relevant. Tailor your efforts toward individuals who are most likely to benefit from your offerings - such as key decision-makers within your ideal customer profile. Always include a straightforward way for recipients to opt out of future communications. Maintaining detailed records of your assessments and decisions is also essential, as these can serve as proof of compliance if required.

By taking these steps, you can responsibly use legitimate interest while respecting privacy and staying within regulatory boundaries.

ePrivacy laws across Europe play a crucial role in determining whether you can rely on legitimate interest or consent as the foundation for your B2B marketing efforts. These regulations differ from one country to another, with some requiring clear, explicit consent for electronic communications, while others allow legitimate interest under specific circumstances.

Take Germany, for instance - its stricter policies often necessitate obtaining consent for most outreach activities, including email campaigns. On the other hand, some countries are more flexible, permitting legitimate interest when marketing is directed at business contacts and is relevant to their professional responsibilities. To steer clear of penalties and uphold your audience's trust, it's essential to align your strategy with both local laws and overarching frameworks like GDPR.

Legitimate Interest vs. Consent in B2B Marketing