The GDPR

We find a definition of the consent in Article 4, 11) of the Regulation that is very close to that issued by the Directive: “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” (see also G29, Opinion 15/2011 of 13 July 2011 on the definition of consent).

In doing so, the new text replaces the unambiguous nature of the consent as in Article 7 a) of the Directive by “specific and informed”, which will not amount to very much. On the other hand, the definition underlines the fact that the consent must consist of a statement or clear affirmative action, which seems to exclude a purely passive or tacit consent, even though witnessed (see in this sense recital 32).

Article 7 specifies the conditions of the consent, as defined.

First, it states that the burden of proof of consent is left to the controller.

The second paragraph of article 7 also specifies that if the data subject’s consent shall be required in the context of a written statement concerning also other questions, the request for consent must be made in a form which distinguishes it clearly from these other questions, in a way that is understandable and easily accessible, using clear and plain language. This new rule for example seems to imply that the consent to the terms and conditions containing an acceptance of processing is not enough to see a consent within the meaning of the Regulation. Otherwise, the statement is not binding to the data subject.

Another rule is generalized: the data subject has the right to withdraw his or her consent at any time. The consent withdrawal does not affect the lawfulness of the processing based on a previously given consent. The withdrawal does not invalidate the processing preceding the withdrawal and would therefore apply only to future processing. The data subject must be informed about this before giving his or her consent. The final version of the Regulation states that the data subject must be able to withdraw his or her consent as easily as given.

Finally, the final version of the Regulation adds a fourth paragraph in article 7 stating that 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.

The Directive

Article 2h of the Directive defined the data subject’s consent as being "any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed". Article 7a of this Directive specifies that to offer a basis for lawfulness of the processing, the consent must have been given "unambiguously”.

Potential issues

The fate of the implicit consent or silent witness is decided by the new definition of consent in the Regulation and it will not be always easy to determine whether the condition of “clear affirmative action” is met in practice. The absence of objection is however clearly excluded asbeing consent.

The controller should always obtain evidence of consent and therefore, provide archiving within the processing procedure.

The controller must also review the processes of the existing consents in order to comply with the new conditions of Article 7 that increasingly require that the “privacy” consent is considered to be independent of the contractual consent.

Group 29

Guidelines on consent under Regulation 2016/679 (10 avril 2018)

(Endorsed by the EDPB)

These Guidelines provide a thorough analysis of the notion of consent in Regulation 2016/679, the General Data Protection Regulation (hereafter: GDPR). The concept of consent as used in the Data Protection Directive (hereafter: Directive 95/46/EC) and in the e-Privacy Directive to date, has evolved. The GDPR provides further clarification and specification of the requirements for obtaining and demonstrating valid consent. These Guidelines focus on these changes, providing practical guidance to ensure compliance with the GDPR and building upon Opinion 15/2011 on consent. The obligation is on controllers to innovate to find new solutions that operate within the parameters of the law and better support the protection of personal data and the interests of data subjects.

Consent remains one of six lawful bases to process personal data, as listed in Article 6 of the GDPR. When initiating activities that involve processing of personal data, a controller must always take time to consider what would be the appropriate lawful ground for the envisaged processing.

Generally, consent can only be an appropriate lawful basis if a data subject is offered control and is offered a genuine choice with regard to accepting or declining the terms offered or declining them without detriment. When asking for consent, a controller has the duty to assess whether it will meet all the requirements to obtain valid consent. If obtained in full compliance with the GDPR, consent is a tool that gives data subjects control over whether or not personal data concerning them will be processed. If not, the data subject’s control becomes illusory and consent will be an invalid basis for processing, rendering the processing activity unlawful.

The existing Article 29 Working Party (WP29) Opinions on consent remain relevant, where consistent with the new legal framework, as the GDPR codifies existing WP29 guidance and general good practice and most of the key elements of consent remain the same under the GDPR. Therefore, in this document, WP29 expands upon and completes earlier Opinions on specific topics that include reference to consent under Directive 95/46/EC, rather than replacing them.
As stated in Opinion 15/2011 on the definition on consent, inviting people to accept a data processing operation should be subject to rigorous requirements, since it concerns the fundamental rights of data subjects and the controller wishes to engage in a processing operation that would be unlawful without the data subject’s consent.4 The crucial role of consent is underlined by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. Furthermore, obtaining consent also does not negate or in any way diminish the controller’s obligations to observe the principles of processing enshrined in the GDPR, especially Article 5 of the GDPR with regard to fairness, necessity and proportionality, as well as data quality. Even if the processing of personal data is based on consent of the data subject, this would not legitimise collection of data which is not necessary in relation to a specified purpose of processing and be fundamentally unfair.

Meanwhile, WP29 is aware of the review of the ePrivacy Directive (2002/58/EC). The notion of consent in the draft ePrivacy Regulation remains linked to the notion of consent in the GDPR. Organisations are likely to need consent under the ePrivacy instrument for most online marketing messages or marketing calls, and online tracking methods including by the use of cookies or apps or other software. WP29 has already provided recommendations and guidance to the European legislator on the Proposal for a Regulation on ePrivacy.

With regard to the existing e-Privacy Directive, WP29 notes that references to the repealed Directive 95/46/EC shall be construed as references to the GDPR.8 This also applies to references to consent in the current Directive 2002/58/EC, as the ePrivacy Regulation will not (yet) be in force from 25 May 2018. According to Article 95 GDPR, additional obligations in relation to processing in connection with the provision of publicly available electronic communications services in public communication networks shall not be imposed insofar the e-Privacy Directive imposes specific obligations with the same objective. WP29 notes that the requirements for consent under the GDPR are not considered to be an ‘additional obligation’, but rather as preconditions for lawful processing. Therefore, the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive.

Link

CJEU caselaw

C-708/18 (11 December 2019)

Article 6(1)(c) and Article 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national provisions which authorise the installation of a video surveillance system, such as the system at issue in the main proceedings, installed in the common parts of a residential building, for the purposes of pursuing legitimate interests of ensuring the safety and protection of individuals and property, without the consent of the data subjects, if the processing of personal data carried out by means of the video surveillance system at issue fulfils the conditions laid down in Article 7(f), which it is for the referring court to determine.

Judgment of the Court