Worldwide: GDPR: Guidance On Consent Requirements

Last Updated: March 15 2018
Article by Diane Savage and Ann Bevitt

In December 2017, the Article 29 Working Party released for comment a draft of its guidance on consent under the GDPR. Consent is one of the lawful bases for processing personal data and one of the permitted means by which personal data may be transferred to a third country outside of the European Union, even if that country has not been found by the European Commission to provide an "adequate" level of protection. The following is a quick summary of the Working Party's interpretations of the GDPR requirements for "consent" and for "explicit consent."

The GDPR requires explicit consent, which must meet the consent requirements plus the additional requirements set forth below, in the following three circumstances. (a) where the data subject is asked to consent to the processing of special categories of information; (b) where the data controller relies on consent as the basis for the transfer and processing of personal data to countries or organizations lacking an adequacy decision, under Article 49; and (c) in the case where personal data is used for automated individual decision making, including profiling, under Article 22.1

Consent

Consent must be freely given, specific, informed and unambiguous.

  1. Freely given: Consent must involve "real choice and control for data subjects." It will not be considered to have been freely given if: (a) it is bundled in non-negotiable terms and conditions; (b) it cannot be refused or withdrawn; (c) it requires consent to the processing of personal data that is not necessary for the performance of the contract; or (d) where there is an imbalance in power between the data controller and the data subject. What is "necessary for the performance of a contract" will be interpreted strictly, such that there must be a direct and objective link between processing and performance for the performance to qualify as a lawful basis. By way of example, the Working Party provides that a mobile phone-editing application that requires users to activate GPS location services for behavioral purposes would not qualify as "freely given" because consent to processing of unnecessary personal data cannot be seen as a mandatory consideration in exchange for performance. The Working Party warns that the imbalance in power between data controller and data subject means that for the majority of data processing at work, consent cannot be relied on as the lawful basis for processing personal data of employees since it is unlikely employees will feel able to freely respond to a request by their employer to process their personal data, or to refuse such request, without detriment.
  2. Specific: Specific consent is intended to "ensure a degree of user control and transparency for the data subject" and is closely related to the requirement that consent be informed. The Working party identifies three components of specificity that data controllers must apply: (a) there should be a specification of the purpose of the processing; (b) there should be granularity in consent requests; and (3) there should be a clear separation of information related to obtaining consent for processing from information about other matters.
  3. Informed: The requirement for informed consent is derived in part from the principle of transparency in Article 5 of the GDPR. The Working Party states that the following categories of information are the minimum necessary for consent to be informed: (a) the identity of the data controller; (b) the purpose of each of the processing operations for which consent is sought; (c) what types of personal data will be collected and processed; (d) the existence of the right to withdraw consent; (e) information about the use of personal data for decisions based solely on automated processing, including profiling; and (f) if the consent relates to transfers, information about the possible risks of data transfers to third countries in the absence of an adequacy decision and/or appropriate safeguards. If there are joint controllers, all joint controllers must be named. The Working Party notes that valid informed consent can exist, even when not all of the above elements are mentioned in the process of obtaining consent, so long as the relevant disclosures are made elsewhere by the data controller.
  4. Unambiguous indication of wishes: Consent must include a statement or affirmative act from the data subject. Written or recorded oral statements, including electronic statements, may satisfy this requirement, but pre-ticked boxes, or silence, inactivity, consent implied by the user proceeding with the service, or general agreement to a blanket terms of service agreement, do not constitute an unambiguous indication of wishes. Withdrawal of consent must be as easy as what was required to provide consent. The Working Party provides several examples of a physical motion which can qualify as unambiguous indication of wishes (swiping on screen, waving in front of a smart camera and turning a phone in a specified direction) so long as clear information is provided and agreement to a specific request is indicated. The Working Party recognizes that an issue of fatigue could result from multiple requests for consent, but reminds controllers that they retain the responsibility for solving this problem. If a data controller relies on the data subject's consent to process personal data and the data subject does not check the box agreeing to the data controller's privacy policy or confirm his or her consent via a clear affirmative act, the data subject should not be permitted to proceed with registration, account creation and/or submission or uploading of any personal data.
  1. In addition, the Guidelines recommend refreshing consent at "appropriate intervals" and, when doing so, providing all of the required information discussed above again to ensure that the consent is still informed.

Explicit consent

"Explicit consent" is distinguished from regular consent (which must be confirmed via an "unambiguous indication of consent," as discussed above) via the means by which it is obtained. "Explicit" requires "an express statement." A written statement (for example, typed instructions) is a "best practice" form of explicit consent. The Working Party Guidelines state that a written statement signed by the data subject is one method of obtaining explicit consent. Other methods including having the data subject fill in an electronic form; send an email; upload a scanned document with a signature; record an oral statement; or verify consent via a two-stage authentication process (for example, an email followed by an SMS message). For explicit consent obtained online, the Working Group suggest retaining information of the session in which consent was obtained, along with "documentation of the consent workflow at the time of the session" and a copy of the information (i.e., the page displayed) presented to the data subject.

As with other consents, the Guidelines recommend refreshing explicit consent at "appropriate intervals" and, when doing so, providing all of the required information discussed above again to ensure that the explicit consent is still informed.

Re-consenting

The Guidelines make clear that data controllers that currently rely on consent to process personal data are not required to ask data subjects to re-consent if the original consent meets all of the requirements set out above. However, if existing consents do not meet these requirements (e.g., because they rely on a more implied form of action by a data subject), they will need to be renewed. Alternatively, data controllers may be able to rely on a different lawful basis (e.g., legitimate interests).

Key takeaway

  1. Each data controller subject to the GDPR that relies on consent as the basis for any of the following will need to review when and how it obtains consent from data subjects: the general collection and use of personal data, the use of cookies, and the sending of direct marketing communications, such as newsletters, promotional emails, etc.
  2. Each data controller subject to the GDPR that relies on consent will need to ensure that it has implemented a process for obtaining explicit consent: (a) where the data subject is asked to consent to the processing of special categories of information; (b) where the data controller relies on consent as the basis for the transfer and processing of personal data to countries or organizations lacking an adequacy decision, under Article 49; and (c) in the case where personal data is used for automated individual decision making, including profiling, under Article 22.
  3. Each data controller subject to the GDPR should refresh consent at appropriate intervals and, when doing so, provide all the information to the data subject again to ensure that the consent is still informed.
  4. Each data controller subject to the GDPR must ensure that the process for a data subject to withdraw his or her consent is as easy as the process by which the data subject gave his or her consent.

Footnotes

  1. "Special categories of personal data" is defined in Article 9 of the GDPR as personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation.

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
Wilson Elser Moskowitz Edelman & Dicker LLP
Dickinson Wright PLLC
Dickinson Wright PLLC
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Dickinson Wright PLLC
Dickinson Wright PLLC
Related Articles
 
Related Video
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