One of the most common grounds for lawful processing of personal data is obtaining the data subject's consent. As from 25 May 2018 when the GDPR shall enter into force, the requirements for obtaining lawfully such consent will be significantly amended.
Despite being more burdensome for companies, the new requirements may serve as a competitive advantage for those that will be prepared to make the best of them. Adequate measures to ensure compliance with the rules may not only reduce the regulatory compliance risk, but may also build customer trust and enhance the reputation of the company through a transparent processing policy and customers' consents provided in compliance with the GDPR.
- The new definition of "consent" under the GDPR
Article 4(11) of the GDPR defines data subject's consent as "any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her". Thus, for consent to serve as a legitimate ground for personal data processing, the following requirements must be met:
a) "freely given"
A freely given consent means that the data subject has genuine or free choice to either agree or disagree to having his or her personal data processed. Pursuant to the GDPR, where there is a clear imbalance between the data subject and the controller, for example where the controller is a public authority, it would be unlikely that consent was freely given. It is reasonable to expect that clauses in employment agreements, by which employees unconditionally consent to being recorded by CCTV or having their online activity monitored at the workplace, may not in all cases serve as a legitimate ground for the processing of such data.
Further, consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the specific case, or if the performance of a contract, including the provision of a service, is made dependent on the consent despite such consent not being necessary for such performance.
It is, therefore, important to make distinction between personal data which is crucial for the performance of contractual obligations and personal data which serves only for additional purposes (e.g. promotion campaigns). In the first case, depending on the circumstances, consent may not be necessary if other grounds for the processing may apply (more information on the other legal basis for personal data processing will follow soon in a separate article), whereas in the second case consent clauses containing a clear opt-in option will be mandatory, subject to the e-Privacy Directive and national legislation rules.
Consent shall not be considered as freely given, if the data subject is unable to refuse or withdraw it without detriment. Data controllers must ensure that the consent can be withdrawn as easily as it is given.
b) "specific and informed"
The GDPR stipulates that for consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. However, as discussed in our article on data subjects' rights, there is more information to be provided by the controller.
When the processing has multiple purposes, consent should be given for all of them. The data subject cannot validly consent to an indefinite range of processing activities. If the data subject's consent is requested by electronic means, any such request must be "clear, concise and not unnecessarily disruptive to the use of the service for which it is provided".
c) "unambiguous indication of the data subject's wishes ... by a statement or by a clear affirmative action"
This requirement essentially means that it must be completely clear from the data subject's actions that he or she has consented to have his or her personal data processed. "Opt-out consent" (inaction, pre-ticked boxes etc.) will not constitute a valid consent. Under the GDPR consent may be given by a written statement, including by electronic means, or an oral statement. However, given the accountability principle, avoiding verbal consents is recommended as they are harder to record and prove.
Pursuant to Article 7(2) of the GDPR, where consent is given by a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of the GDPR will not be binding. Companies could consider whether a consent clause included in long and exhaustive general terms and conditions is in all circumstances an appropriate manner to obtain the data subject's consent.
Alternatively to a statement, the GDPR adds that the consent may be given by a clear affirmative action, arguably leaving room for implied consents. Among the biggest risks when relying on such consents would be to incorrectly determine the processing purposes to which the data subject has actually consented and the point as from which such consent becomes inapplicable to new processing purposes. For example, participation in a charity or promotional campaign set to start and end within clear timeframes might not serve as an indication of the data subject's consent to participate or to be contacted for further marketing or other purposes. Thus, reliance on implied consents must be always subject to a prudent analysis of the specific circumstances.
- Children's consent
The GDPR introduces stricter rules on the processing of personal data when providing information society services (over the Internet) to children below 16 years old. Pursuant to Article 8(1) of the GDPR, such processing shall be "lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child". Controllers must make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology. The consent of the holder of parental responsibility will not be necessary in the context of preventive or counselling services offered directly to a child. The new rules make reliance on child consent risky without adequate systems to verify the age of online users.
- Explicit consent
The data subject's "explicit consent" is required for processing of special categories of personal data (related to racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, health data etc.) and for automated processing. Generally, individuals have the right not to be subject to decisions, which are solely based on automated processing activities and have legal or other similarly significant effect on them. The data subject's explicit consent is one of the exemptions provided for in the GDPR.
The GDPR does define what "explicit consent" is. Arguably, such consent can be expressed only with a statement (whether written or oral) and not by other "affirmative action". It is of great importance to properly draft any clauses seeking individuals' explicit consent, erring on the safe side.
In many situations consent would not be an appropriate legal basis for justifying the processing of personal data. It is recommended to avoid excessive adjustments of existing consents aimed solely at fitting them to any possible processing scenario. Depending on the type of personal data processed and the purposes for its processing, other lawful grounds may also apply. It is the proper communication to the data subjects of the scope and purpose of the processing activities that would be a crucial compliance aspect.
Further, it is worth mentioning that according to the Article 29 Data Protection Working Party, if a processing could have taken place from the beginning using other ground, "presenting the individual with a situation where he is asked to consent to the processing could be considered as misleading or inherently unfair".
Some of the practical steps companies may consider in order to prepare for the new GDPR consent rules include:
- Identify the categories of personal data processed within the company;
- Identify the legal basis applicable to the processing of each category of personal data;
- Where no other legal basis applies and existing consents do not meet the higher standards of the GDPR, prepare and obtain GDPR-compliant consents;
- Keep records for any of the above activities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.