Disclosure is to inform data subjects by the data controller, or the person authorized, during the acquisition of the data as a rule, by using the data in a physical or electronic environment such as verbal, written, voice recording, call center. Explicit consent is a declaration of positive will about a particular subject, based on information and announced with free will.
One of the most important differences between disclosure and explicit consent is that explicit consent is a reason of compliance with the law; and disclosure is a liability. Namely;
Explicit consent is one of the legal terms listed in the law, and if the data processing activity is not based on any of the other legal requirements listed in Article 5 of the Law, the person must consent to the processing of his/her data. In cases where one of the other legal reasons exists, explicit consent will compare the data controller with the abuse of the right and an invalid explicit consent.
That means, explicit consent is one of the reasons for compliance with the law, which should be applied in cases where there is no legal reason, not in any case. For this reason, the data controller should determine whether the personal data processing activity is primarily based on a legal reason other than explicit consent, if this activity is not based on at least one of the legal reasons listed in the Article 5 of KVKK excluding explicit consent and if there is a legitimate aim, he/she should seek the explicit consent of the data subject.
In addition, the most important thing to remember about explicit consent is that the explicit consent of individuals must be obtained before starting data processing. Obtaining explicit consent after data processing begins will constitute a violation of the law. Besides, since giving explicit consent is an individual right, the explicit consent given can be withdrawn and the withdrawal declaration becomes effective as soon as it reaches the data controller.
Disclosure, on the other hand, is the necessity of informing the data subject, regardless of the legal reason for data processing. Data processing activity to be carried out with the explicit consent of the person or due to the performance of a contract, as stipulated by law, or if one of the other legal reasons listed exists, the person must be informed about the legal reason, for what purpose, by whom, in what way his/her data is processed, for which purpose the data is transferred to which parties and what his/her rights are. This information should be given before starting data processing activity or at the latest when data processing is started.
There is no need for the statement of positive will of the data subject for disclosure; it is sufficient for the disclosure to reach the data subject.
Explicit consent should be based on disclosure, while obtaining explicit consent of the person, explicit consent should be obtained by making disclosure to them on a particular subject.
Finally; explicit consent and disclosure should not be arranged in the same text and presented to the data subjects. The explicit consent text should be presented to the person in such a way that the data subject person can understand and his/her will is not injured for any reason. Otherwise, the declaration of consent issued within in the disclosure text will not be a valid explicit consent.
|Differences Between Disclosure and Explicit Consent|
|Statement of the positive will of the data subject is required.||It is sufficient for the disclosure to reach the data subject.|
|It is the reason for compliance with the law.||It is one of the obligations stipulated by the law.|
|It is a reason to be consulted when there is no other reason for compliance.||It is necessary to make disclosure to the data subject for all legal reasons.|
|The explicit consent of the data subject must be obtained before starting the data processing.||Disclosure can be made at the latest when data processing begins.|
|All elements take place in the disclosure are also included in the explicit consent, because explicit consent is based on the disclosure.||Not all elements of explicit consent are applied for the disclosure.|
You may find further information on the Protection of Personal Data and our services at https://www.verisistem.com/en/
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.