European Union: Guide Yourself To Explicit Consent: Article 29 Working Party's Updated Opinion

I. Introduction

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data ("Working Party") which is established as per the Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 ("EU Directive") updated their opinion on consent under General Data Protection Regulation ("GDPR") which will be effective on May 28, 2018.

The GDPR evolved the concept of consent under the EU Directive and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector ("E-privacy Directive) by providing further clarification and specification of the requirements for obtaining and demonstrating valid consent. The Working Party's opinion of November 28, 2017 mainly focuses on this evolution and sheds more light onto EU Directive - GDPR - Turkish Data Protection Law ("Law No. 6698") triangle. Law No. 6698 is based on the EU Directive, whereas its consent related provision for processing personal data is adopted from the GDPR. Hence the updated opinion answers most of the questions raised by Turkish companies during their compliance processes.

II. Elements of Valid Consent

Article 4(11) of the GDPR defines 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".

According to this provision, the consent of the data subject means any (i) freely given, (ii) specific, (iii) informed and (iv) 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.

(i) The Consent Must be Freely Given

Working Party in their opinion stated that consent will not be considered as "free" if the data subject is unable to refuse his or her consent and it can only be valid if the data subject is able to exercise a real choice. Consent will not be free in cases where there is any element of compulsion, pressure or inability to exercise free will. Working Party also mentioned that the imbalance between the data subject and the controller (which mostly occurs in the events where the data controller is a public authority or where the data subject is an employee) is also taken into consideration by the GDPR.

The Article 7(4) of the GDPR plays an important role while determining whether consent is freely given or not. According to this article, when assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. By regulating this provision GDPR aims to narrow the term "the performance of a contract". The Working party states that there needs to be a direct and objective link between the processing of the data and the purpose of the execution of the contract (e.g. processing the address of the data subject in order to deliver the goods which were purchased online).

The Working Party also mentions the terms "granularity" while determining the existence of freely given consent. In cases where a service involves multiple processing operations for more than one purpose, the data subjects should be free to choose which purpose they accept. Therefore, several consents may be warranted for each purpose. In other words, consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of these purposes.

For example, a company asks from its customers to give their consent to send them their campaigns and promotions by e-mail messages and also to share their personal data with other companies within their group at the same time. According to the GDPR, this consent cannot be considered as granular since there are no separate consents for these two separate purposes. Therefore, the consent will not be valid.

According to the GDPR, the data controller also needs to demonstrate that the data subject is free to refuse or withdraw consent without detriment and it should be able to prove that the data subject has a free or genuine choice on giving consent.

(ii) The Consent Must be Specific:

According to the Working Party, to comply with the element "specific" which is stated in the definition of "consent" under the GDPR, the data controller must apply the following:

a. If a data controller processes data based on consent and intends to process the data for a new purpose, the data controller needs to obtain a new consent from the data subject for the new processing purpose. The original consent will not legitimize new purposes for processing.

b. If the data controller seeks consent for various different purposes, it should provide a separate opt-in for each purpose, to allow users to give specific consent for specific purposes.

c. The data controllers should provide specific information regarding each separate consent request about the data in order to make data subjects aware of the impact of the different choices that they have.

(iii) The Data Subject Must be Informed:

According to the Working Party, it is essential to provide information to data subjects before obtaining their consent since it will enable them to make informed decisions, understand what they are giving consent to, and exercise their rights regarding their consent. The Working Party listed the minimum information required for obtaining valid consent in terms of GDPR. These are:

a. the identity of the data controller,

b. the purpose of each of the processing operations for which consent is sought,

c. the type of data which will be collected and used by the data controller,

d. the existence of the right to withdraw consent,

e. information about the use of the data for decisions based solely on automated processing,

f. if the consent relates to data transfers, information about the possible risks of data transfers to third countries in the absence of an adequacy decision and appropriate safeguards

Even though most of the information listed above were also included in the EU Directive, the GDPR expands the information that should be provided with the data subject by stating that the data controller should also inform the data subject that he/she can withdraw his/her consent. This requirement was not included in the EU Directive.

Similar to the EU Directive, the GDPR also does not require a certain form or shape of such information. Hence, the valid information may be provided in various ways (e.g. written, orally, via audio or video messages). However the GDPR also brings higher standards for the clarity and accessibility of the information. Accordingly the Working Party stated that the data controller should use clear and plain language which can be easily understood by an average person. The Working Party does not allow long illegible privacy policies or statements full of legal jargon.

(iv) Unambiguous Indication of the Data Subject's Wishes

The Working Party exemplifies Article 7 (2) of the GDPR which addresses pre-formulated written declarations of consent. According to the Working Party, when consent is requested as part of a contract, the request for consent should be clearly distinguishable from the other matters. Also, if consent is requested by electronic means, the consent request has to be separate and distinct; it cannot simply be a paragraph within terms and conditions. This is especially of importance for e-commerce websites, along with many other online platforms and other real and legal persons processing personal data. That means no more incorporating data protection clauses into Terms & Conditions or into employment contracts. The principle of being "clearly distinguishable" is also linked with being "freely given". For instance, if consent is indistinguishable and incorporated into an agreement along with many other provisions, the data subject cannot consent freely and separately but sign the agreement as a whole. 

The EU Directive described consent as an "indication of wishes by which the data subject signifies his agreement to personal data relating to him being processed". The GDPR expands this definition, by clarifying that valid consent requires an unambiguous indication by means of a statement or by a clear affirmative action which means that the data subject must have taken a deliberate action to consent to the particular processing.

The GDPR also brings new requirements for the data controllers regarding the explicit consent they obtain. According to Article 7 of the GDPR, the data controller is obliged to demonstrate the data subject's consent. The same provision also states that data controller must ensure that consent can be withdrawn by the data subject as easy as giving consent and at any given time.

III. Reflections of Article 29 Working Party's Updated Opinion to Turkish Personal Data Legislation

Law No. 6698 is based on the EU Directive which is currently in force. The obligations of data controllers and the rights of the data subjects set forth under the Law No. 6698 are basically in line with the provisions under the EU Directive. Having said that, the Law No. 6698 requires "explicit consent" of the data subjects for any kind of personal data processing, not only for sensitive personal data, which is in line with the GDPR. Accordingly, the Working Party's updated opinion for the GDPR may also guide Turkish businesses in terms of structuring their processes.

For instance, according to the GDPR, the data controller must be able to demonstrate that valid consent was obtained. Also, mechanisms for data subjects to withdraw their consent must be available and easy to apply, and the data controller must provide information on how to withdraw consent. The Law No. 6698 also brings similar obligations to the data controllers.

The Law No. 6698 is a separate and independent local regulation. However, it is likely that the Turkish Data Protection Board, which is the main authority on data protection related matter, would take the opinion of Working Party as a basis while evaluating the convenience of the consent, as the Law No. 6698 is mainly based on the EU legislation and the implementation in the EU is currently the primary source.  Turkish Data Protection Board has already published its guideline document on consents, and stated that umbrella consents will be invalid, which is in parallel with the "specific consent" principle in the EU. We expect that the opinion of the Turkish Data Protection Board takes shape in time by also taking into account the implementation in the EU. Data controllers may benefit from the Working Party's updated opinion for clarity on explicit consent and assess whether their current flow for consent needs updates.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Ozbek Attorney Partnership
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ozbek Attorney Partnership
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions