Ultimate guide on consent under GDPR

This article aims to provide an overview of the role of consent in GDPR (General Data Protection Regulation). Under GDPR, consent plays a crucial role in ensuring the protection and processing of personal data. Obtaining valid consent is crucial for organizations to ensure they comply with the principles and obligations of GDPR. Consent serves as a legal basis for processing personal data, and organizations must obtain consent that is freely given, specific, informed, and unambiguous. Failing to obtain proper consent can result in severe consequences, including fines and reputational damage. 

This article will explore the definition of consent within the context of GDPR, the conditions for obtaining valid consent, and the distinction between explicit consent and regular consent. It will also explain how consent serves as a legal basis for processing data under GDPR and discuss the process of recording and managing consent. Additionally, article will address the right to withdraw consent, children’s consent, the impact of not obtaining proper consent, best practices for consent management, and challenges and misconceptions about consent. Further, we will look at the future of consent in relation to new technology and regulations. 

Understanding Consent

Consent plays a crucial role in GDPR compliance and is essential for the lawful processing of personal data. Under the GDPR, consent is defined as a clear, affirmative action that signifies a person’s agreement to the processing of their personal data. To obtain valid consent, organizations must ensure that it is freely given, specific, informed, and unambiguous. It is important to distinguish between explicit consent and regular consent, with explicit consent being required for certain types of data processing. Understanding these concepts is essential for organizations to properly navigate the requirements of the GDPR and ensure compliance with data protection regulations.

Definition of consent in the context of GDPR

Consent, in the context of GDPR (General Data Protection Regulation), refers to the clear, affirmative action that signifies an individual’s agreement to the processing of their personal data. According to GDPR, consent must be freely given, specific, informed, and unambiguous. It requires organizations to be transparent about the purpose of data processing and obtain explicit consent for certain types of sensitive data.

 Also, individuals have a right to withdraw the consent at any time without negative consequences. Even more – it should be as easy to withdraw consent as it is to give it. Withdrawal processes should be clear and straightforward. 

With consent as the legal basis, organizations can ensure compliance with data protection regulations and respect individuals’ rights to control their personal information.

The conditions for obtaining valid consent

To obtain valid consent under GDPR, there are certain conditions that need to be met. The consent must be freely given, meaning there should be no pressure or consequences for individuals if they choose not to give consent. It must be specific, clearly indicating what data will be collected and how it will be used. The consent must also be informed, ensuring that individuals have adequate information about the processing of their personal data. Lastly, the consent must be unambiguous, using clear and plain language to avoid any confusion.

Freely given

Freely given: it is a crucial requirement under GDPR for consent to be valid, and implies that individuals have the choice to give or withhold consent without facing any pressure or negative consequences. Consent should not be a condition for accessing a service or product. Organizations must ensure that individuals have complete freedom to make an informed decision about the use of their personal data. Coercion, manipulation, or any form of undue influence must be avoided when obtaining consent.

Specific

Specific refers to the requirement that consent must be given for a specific purpose. This means that individuals must be informed about exactly what their data will be used for and by whom. Organizations must clearly specify the purpose of data processing and obtain separate consents for each distinct purpose. It is not permissible to obtain blanket or vague consent that covers multiple purposes. Consent requests should be specific, granular, and clearly communicated to ensure individuals have full understanding and control over their personal data.

Informed

In the context of GDPR, obtaining informed consent means that individuals must have a clear understanding of what they are consenting to. Organizations are required to provide individuals with easily accessible information about the data processing activities, including the purposes of processing, the types of data collected, the existence of their right to withdraw consent, identity of the data controller and any third parties involved. This information should be communicated in a concise, transparent, and easily understandable manner. It is important to ensure individuals have all the necessary information to make an informed decision about giving their consent.

Unambiguous

There must be a clear affirmative action that signifies consent. It should be evident what individuals are consenting to, including the exact data processing activities and purposes. Vague or broad statements that do not provide sufficient detail may result in consent being deemed invalid. Also pre-ticked boxes, silence, or inactivity do not constitute consent. The language used should be concise and easily understandable, avoiding any complex or convoluted terms. Clarity and specificity are essential to ensure that individuals fully comprehend and agree to the processing of their personal data.

Explicit consent vs. regular consent

Explicit consent and regular consent are two different types of consent recognized under GDPR. Regular consent (often referred to as “implied consent”) refers to a general form of consent where consent is assumed by a person’s actions. For example, consent may be assumed when someone enters a competition or subscribes to a newsletter by providing an email address.

Explicit consent, on the other hand, requires individuals to provide clear and specific statement of consent. Unlike regular consent, explicit consent demands a higher level of detail and leaves no room for ambiguity. GDPR emphasizes the use of explicit consent when sensitive (special categories) personal data is being processed or for actions that have significant implications.

Consent as The Legal Basis for Processing Data Under GDPR

Under the General Data Protection Regulation (GDPR), consent is one of several legal bases for processing personal data. While consent is often seen as the main or most appropriate legal basis to process data, it is not always the only option. Consent should only be relied upon when there are no other lawful grounds available. Organizations must ensure that consent is freely given, specific, informed, and unambiguous. Additionally, consent must be recorded and managed effectively to comply with GDPR requirements. 

Consent allows individuals to have control over their personal data and ensures that their rights are protected. However, it is important to note that consent is not the only legal basis for processing data under GDPR. Especially, when control of individuals regarding is limited – for example, when processing is reqired by law. Organizations must carefully consider whether there are other lawful grounds available before relying solely on consent.

Where consent is appropriate

Consent is an appropriate legal basis for processing personal data under GDPR when no other lawful grounds are available. It is particularly appropriate when individuals have a genuine choice and control over their data. This includes situations where individuals voluntarily provide their data for a specific purpose, such as subscribing to a newsletter or consenting to marketing communications. However, it is important to remember that consent must be freely given, specific, informed, and unambiguous, and individual has a right to revoke onsent at any time (meaning that organizations must stop processing their data immediatelly). Organizations should carefully consider whether consent is the most suitable legal basis and document it properly to ensure compliance with GDPR.

When not to rely on consent

When it comes to processing personal data under GDPR, there are instances where relying solely on consent as a legal basis may not be appropriate. Consent may not be suitable when there is a clear imbalance of power between the individual and the controller, such as in an employment relationship. It is also not advisable to rely on consent if there is a legal obligation or legitimate interest that overrides the need for consent. In these cases, alternative lawful grounds for processing personal data should be considered and documented accordingly.

Clear and plain language

Clear and plain language in obtaining consent under GDPR means using language that is easily understandable to the average person, without requiring specialized knowledge or expertise. It involves:

• Avoiding Complex Terms: Do not use complex legal, technical, or professional jargon.
• Being Concise: Provide all necessary information succinctly without unnecessary elaboration.
• Structured Information: Present information in an organized manner, using bullet points or headings where appropriate.
• Using Active Voice: Write in an active voice to make the text more engaging and easier to understand.
• Being Specific and Clear: Avoid vagueness. Clearly state the purpose of data collection, how data will be used, and any other relevant details.
• Transparency: Be open about the intent behind collecting the data and who will have access to it.
• Accessibility: Ensure that the information is accessible to all, including those with disabilities (for example, by providing alternative text for images in digital content).

The goal is to ensure that individuals fully understand the implications of giving their consent and are therefore able to make an informed decision.

Separation from other terms and conditions

Separation from other terms and conditions means that the request for consent should be distinct and not embedded within other documents or agreements. To achieve this:

• Present Consent Separately: Keep consent requests separate from general terms and conditions, privacy policies, or any other agreements.
• Use Standalone Documents or Sections: If consent is part of a larger document, make sure it has its own section that is clearly labeled and easy to find.
• Highlight Consent Requests: Visually distinguish the consent portion using bold text, a different font color, or a separate box to ensure it stands out.
• Avoid Pre-Checked Boxes: Do not use pre-checked boxes or default options that assume consent.
• Ensure Clarity: The consent request should be clear and understandable without referring to the terms and conditions or privacy policy for clarification.

This approach helps to ensure that the individual’s consent is given freely and is fully informed.

The process of recording and managing consent

Recording and managing consent is a crucial aspect of GDPR compliance. Organizations must have a system in place to record and document the consent obtained from individuals. This documentation should include the date and time of consent, the method used to obtain consent, and the specific purpose for which consent was granted. It is important to regularly review and update these records to ensure they are accurate and up to date. By maintaining proper records of consent, organizations can demonstrate their commitment to data protection and ensure they are acting in accordance with GDPR guidelines.

Keeping records of consent

Keeping accurate and up-to-date records of consent is a critical aspect of GDPR compliance. Organizations must maintain a system to record and document the consent obtained from individuals. These records should include the date and time of consent, the method used to obtain consent, and the specific purpose for which consent was granted. Regularly reviewing and updating these records ensures they remain accurate and compliant with GDPR guidelines. By keeping detailed records of consent, organizations can demonstrate their commitment to data protection and accountability.

Ensuring documentation is up to date

Ensuring documentation is up to date is crucial for maintaining GDPR compliance. Organizations must regularly review and update their records of consent to reflect any changes in consent status or purpose. This includes obtaining fresh consent if there is a change in the originally specified purpose. By keeping documentation up to date, organizations can demonstrate their commitment to data protection and accountability, avoiding potential fines and penalties for non-compliance. Regularly reviewing and updating consent records also helps ensure accurate and lawful processing of personal data.

The Right to Withdraw Consent

Under the GDPR, individuals have the right to withdraw their consent at any time. This means that they can decide to stop the processing of their personal data. Organizations must make it as easy for individuals to withdraw consent as it was for them to give it. This can be done through clear and easily accessible withdrawal mechanisms. When an individual withdraws consent, the organization must cease processing their data, unless there is another legal basis for doing so. It is crucial for organizations to respect and honor individuals’ right to withdraw consent to maintain GDPR compliance.

The right to withdraw consent

The right to withdraw consent is a fundamental aspect of the GDPR. Under this regulation, individuals have the right to revoke their consent at any time. This means that they can choose to stop the processing of their personal data by an organization. It is essential for organizations to make the process of withdrawing consent as easy as it was for individuals to give it. Once consent is withdrawn, the organization must cease processing the individual’s data, unless there is another legal basis for doing so. Respecting and honoring the right to withdraw consent is crucial for maintaining GDPR compliance.

Requirements for making withdrawal as easy as giving consent

In order to comply with GDPR, organizations must ensure that the process for individuals to withdraw their consent is as easy as giving it. This means that the withdrawal option should be clearly visible and accessible, and individuals should not face any unnecessary barriers or obstacles when trying to withdraw their consent. Organizations should provide clear instructions on how to withdraw consent, whether it is through an online form, email, or other means. Additionally, organizations should promptly process withdrawal requests and stop processing the individual’s data as soon as consent is withdrawn.

Consent for using website cookies 

Under EU lawuse of cookies (both first and third party) requires consent that complies with general consent requirements explained in this article. It means that consent for use of cookies should be freely given, specific, informed, and unambiguous. It requires organizations to provide users with clear and transparent information regarding the purpose of cookies, the data collected, and the duration of cookie storage. Users must have the ability to make an active choice regarding the acceptance or rejection of cookies, and mere continuation of using a website or service cannot be considered as a valid form of consent.

While GDPR primarily protects EU citizens, it applies to all users on your site if you offer goods or services to, or monitor the behavior of, individuals within the EU.

To obtain valid consent, organizations must employ methods that are user-friendly and ensure that consent is opt-in rather than pre-selected. This means that users should be required to take a deliberate action to provide consent. Cookie banners or pop-ups that inform users about the use of cookies and seek their consent have become a common practice. To ensure compliance, it is crucial that these banners are easily noticeable, clearly worded, and not obscured by other elements on the webpage.

Moreover, under the GDPR, organizations need to provide users with the option to withdraw their consent at any time and easily manage their cookie preferences. This means that individuals have the right to change their mind and revoke their consent without facing any negative consequences. Organizations must make it simple for users to navigate through cookie settings, allowing them to enable or disable specific types of cookies as per their preferences. It is not enough to tell the user to use the browser settings for cookie management. 

The practice of restricting access to site content unless cookies are accepted (“cookie walls”) is generally frowned upon and may be considered non-compliant in some EU countries.

It is also worth noting that certain types of cookies, such as those necessary for the functioning of a website or those used for strictly analytical purposes, may be exempt from the requirement of explicit consent. However, organizations are still obligated to provide clear information about such cookies in their privacy policies or cookie declarations.

Non-compliance with the GDPR’s rules on cookies can lead to severe penalties, including hefty fines. Therefore, it is crucial for organizations to understand and comply with the specifics of consent on cookie use under EU law.

Consent for Special Categories of Data

What are special categories of personal data

Under GDPR, special categories of personal data refer to sensitive information that requires additional protection. These categories include data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying an individual, health data, and data concerning a person’s sex life or sexual orientation. Processing this type of data is generally prohibited unless certain conditions are met, such as obtaining explicit consent or when it is necessary for legal claims or reasons of substantial public interest.

Requirements for processing sensitive data with consent

When processing sensitive data with consent under GDPR, there are specific requirements that need to be met. Consent must be explicit and obtained through a clear, separate, and specific statement from the individual. It should also be freely given, informed, and unambiguous. The individual should have a genuine choice and understand the implications of providing consent for the processing of their sensitive data. Additionally, consent for processing sensitive data must meet the general conditions for obtaining valid consent, as outlined in GDPR. This ensures that individuals have control over their personal data and are aware of how it will be used.

Children’s Consent in GDPR

The GDPR recognizes that children require special protection when it comes to their personal data. It sets a specific age threshold for children to provide their own consent for the processing of their data, which may vary across EU member states but is generally set at 16 years old. However, some member states may lower this age to as low as 13 years old. In cases where a child’s consent is required, it is important to verify that parental consent has been obtained or that suitable safeguards are in place to protect the child’s interests. This ensures that children’s rights and privacy are properly safeguarded in the digital age.

Age of consent for children’s data processing

The age of consent for children’s data processing under the GDPR varies across EU member states. While the GDPR sets the general threshold at 16 years old, some member states have lowered it to as low as 13 years old. This means that in certain countries, children aged 13 or older can provide their own consent for the processing of their personal data. However, it is crucial for organizations to verify and obtain parental consent or implement suitable safeguards when processing children’s data to protect their interests and ensure compliance with the GDPR.

Parental consent and its verification

Parental consent is required when processing the personal data of children under the age of consent. Organizations must take steps to verify parental consent, ensuring that it is obtained before any data processing activities take place. This can be done through various methods such as requiring parents to provide a signed consent form, submitting a copy of identification documents, or implementing age verification mechanisms. Verification of parental consent is important to protect the privacy and rights of children and demonstrate compliance with GDPR and data protection regulations.

Best Practices for Consent Management

Best practices for consent management involve adopting strategies to ensure compliance with GDPR requirements and effectively manage consent processes. These practices include:

1. Clear Communication:
   • Use plain language that is easy to understand.
   • Avoid technical or legal jargon.
   • Explain why you need the data and what you will do with it.
2. Consent Requests Must Be Prominent:
   • Ensure that consent requests are clearly visible and not hidden within lengthy terms and conditions.
   • Consent should not be a precondition of signing up to a service unless necessary for that service.
3. Separate Consent From Other Terms:
   • Keep consent requests separate from other terms and agreements.
   • Do not bundle consent with the acceptance of terms and conditions, privacy notices, or similar documents.
4. Active Opt-In:
   • Use opt-in boxes instead of pre-ticked ones.
   • The user should take affirmative action to give consent (e.g., clicking a button or checking a box).
5. Offer Granular Options:
   • Provide options for different types of processing wherever appropriate.
   • Users should be able to consent separately to different types of processing.
6. Easy to Withdraw Consent:
   • Tell users they have the right to withdraw their consent at any time.
   • Provide an easy and straightforward way for users to withdraw their consent.
7. Keep Records:
   • Document consent details: who, when, how, and what information was provided.
   • Use a consent management platform if necessary to keep track of consent statuses.
8. Regularly Review Consents:
   • Regularly review consents to ensure they are still relevant and valid.
   • Refresh consents if anything changes (e.g., new processing activity or changes to the use of data).
9. Educate Your Team:
   • Ensure that all members of your organization understand the importance of consent and how to obtain it correctly.
10. Design User-Friendly Consent Mechanisms:
    • Make the process of giving consent as simple as possible.
    • Avoid using dark patterns or designs that could mislead or confuse users.

By following these best practices, organizations can establish robust consent management processes and meet the standards set by GDPR for data protection and privacy compliance.

Common challenges faced in obtaining and managing consent

Obtaining and managing consent can present several challenges for organizations striving to comply with GDPR requirements. Some common challenges include:

1. Lack of clarity: Consent forms or requests may not provide clear and understandable information about the data processing activities, leading to confusion among individuals.
2. Consent fatigue: Individuals may be overwhelmed by the number of consent requests they receive, leading to increased resistance or fatigue in giving consent.
3. Ensuring valid consent: Organizations must ensure that consent is freely given, specific, informed, and unambiguous, which can be difficult to achieve in practice.
4. Documentation and record-keeping: Organizations must maintain accurate records of consent, including the date, purpose, and withdrawal options, which requires a systematic and organized approach.
5. Consent across different channels and platforms: Obtaining and managing consent can be complex when organizations interact with individuals through multiple channels or platforms, such as websites, mobile apps, and social media.

By being aware of these challenges, organizations can develop strategies to enhance their consent management processes and ensure compliance with GDPR requirements.

Strategies for maintaining compliance with consent requirements

To maintain compliance with consent requirements under GDPR, organizations can implement several strategies. These include:

1. Clear and transparent communication: Ensure that consent forms and requests provide clear and easily understandable information about the data processing activities.
2. Simplify the consent process: Keep the consent request concise and avoid asking for unnecessary information.
3. Consent preference management: Offer individuals the ability to choose their communication preferences and provide granular control over their consent options.
4. Regular consent reviews: Periodically review and update consent records to ensure they remain valid and up to date.
5. Robust consent documentation: Keep detailed records of consent, including the date, purpose, and withdrawal options, to demonstrate compliance if requested by regulatory authorities.
6. Implement consent management tools: Utilize technology solutions to automate and streamline the consent management process, ensuring efficiency and accuracy.

Tools and solutions for managing consent effectively

There are several tools and solutions available to help organizations effectively manage consent under GDPR. These include:

1. Consent management platforms: These platforms streamline the consent collection process, allowing organizations to easily obtain, track, and record consent from individuals.
2. Data Subject Access Request (DSAR) tools: These tools assist in managing and responding to data subject requests, including requests to access, modify, or delete personal data.
3. Consent preference centers: These online portals enable individuals to easily manage and update their consent preferences, allowing granular control over the types of data processing they consent to.
4. Consent tracking and auditing tools: These tools provide detailed records and logs of consent, ensuring compliance with record-keeping requirements and the ability to demonstrate compliance during audits.

By utilizing these tools and solutions, organizations can effectively manage consent, ensure compliance with GDPR requirements, and enhance transparency and accountability in the data protection process.

Common Misconceptions about Consent

Challenges and misconceptions surrounding consent in GDPR compliance can hinder organizations’ ability to effectively manage and obtain consent. Some challenges include obtaining valid consent from individuals, maintaining accurate documentation, and ensuring the ease of withdrawing consent. Common misconceptions include the belief that consent is the only legal basis for processing personal data and that consent is a one-time requirement. Organizations must address these challenges and misconceptions to ensure compliance with GDPR and protect individuals’ rights to data privacy and consent.

Common pitfalls and misunderstandings about GDPR consent

Some common pitfalls and misunderstandings surrounding GDPR consent include:

1. Believing that consent is the only legal basis for processing personal data under GDPR.
2. Treating consent as a one-time requirement, rather than an ongoing process.
3. Assuming that consent can be obtained through pre-ticked boxes or inactivity.
4. Misinterpreting the requirements for valid consent, such as failing to ensure it is specific and informed.
5. Neglecting to provide individuals with the right to withdraw consent easily.
6. Underestimating the need to keep accurate and up-to-date records of consent.

Addressing challenges in interpreting and implementing consent rules

Addressing challenges in interpreting and implementing consent rules is crucial for organizations striving to comply with GDPR. One common challenge is the interpretation of what constitutes valid consent, as requirements for freely given, specific, informed, and unambiguous consent may vary in different situations. Another challenge is the implementation of proper consent processes, including obtaining and recording consent accurately. Organizations can overcome these challenges by seeking legal guidance, conducting regular audits, providing clear and concise consent options, and leveraging consent management tools for efficient compliance. Taking proactive steps to address these challenges ensures adherence to GDPR regulations and protection of individuals’ data privacy.

The Impact of Not Obtaining Proper Consent

Not obtaining proper consent can have serious consequences for organizations in terms of GDPR compliance. Failure to obtain valid consent can result in significant fines and penalties imposed by regulatory authorities. Additionally, it can lead to reputational damage and loss of trust from individuals whose personal data has been processed without their consent. Non-compliance with consent requirements also undermines the principles of data protection and individuals’ rights to privacy, potentially leading to legal disputes and financial losses for the organization. It is crucial for organizations to understand the importance of obtaining and managing consent in order to avoid these negative impacts.

Potential consequences for non-compliance with consent requirements

Non-compliance with consent requirements under GDPR can have severe consequences for organizations. Regulatory authorities have the power to impose significant fines and penalties for failure to obtain valid consent. These fines can amount to up to €20 million or 4% of the organization’s annual turnover, whichever is higher. In addition to financial penalties, non-compliance can also result in reputational damage and loss of trust from individuals whose personal data has been processed without their consent. It is essential for organizations to understand and adhere to consent requirements to avoid these potential consequences.

Fines related to consent issues

In recent years, there have been several high-profile cases where organizations have faced significant fines and penalties for non-compliance with consent requirements under GDPR. For example, Google was fined €50 million by the French data protection authority for not obtaining valid consent for personalized advertising. British Airways was fined £20 million by the UK Information Commissioner’s Office for failing to obtain proper consent for the processing of customer data. These cases highlight the importance of understanding and adhering to consent requirements to avoid costly consequences.

The Future of Consent

The future of consent in the context of GDPR is likely to evolve with new technology and regulations. As technology advances, there may be new challenges and considerations for obtaining and managing consent, such as the use of artificial intelligence and automated decision-making. Additionally, regulatory bodies may introduce updated guidelines to address emerging privacy concerns. Organizations will need to stay informed and adapt their consent processes accordingly to ensure compliance with evolving laws and protect individuals’ data privacy rights in the digital age.

How the concept of consent might evolve with new technology and regulations

With the rapid advancement of technology and the ever-changing regulatory landscape, the concept of consent under GDPR is expected to evolve. New technologies, such as artificial intelligence and automated decision-making, pose unique challenges when it comes to obtaining and managing consent. Additionally, regulatory bodies may introduce updated guidelines and regulations to address emerging privacy concerns. Organizations will need to stay informed and adapt their consent processes accordingly to ensure compliance with evolving laws and protect individuals’ data privacy rights in the digital age.

Conclusion

Consent plays a crucial role in GDPR compliance and the protection of personal data. It is essential for organizations to understand and correctly implement consent processes to ensure they meet the requirements of GDPR. This includes obtaining freely given, specific, informed, and unambiguous consent from individuals. Organizations should also keep accurate records of consent and provide individuals with the ability to easily withdraw their consent. By prioritizing consent management, organizations can safeguard data privacy and maintain compliance with GDPR regulations. Failure to properly obtain and manage consent can result in severe consequences, including fines. It is essential for organizations to understand and correctly implement consent processes to ensure compliance with GDPR.