On 09 May 2018, the ICO published the final version of its guidance on consent, which is intended to sit alongside its Guide to the General Data Protection Regulation (“GDPR”). Now that the GDPR has come into force, the guidance will still be very useful for data protection experts, as it clarifies key issues regarding consent and when it should be relied on as a lawful basis for processing personal data.
Differences between consent under the Data Protection Act 1998 (“DPA”) and under the GDPR and Data Protection Bill 2017-2019
In its guidance, the ICO refers to the GDPR’s higher standard for consent, in comparison to the DPA. The main elements remain the same, insofar as consent needs to be freely given, specific, informed and there must be an indication signifying agreement. However, the GDPR has introduced new conditions for consent:
- keeping records of consent;
- clarity and prominence of consent requests;
- the right to withdraw consent; and
- avoiding making consent a condition of a contract.
The guidance also highlights the new specific provisions on children’s consent for online services and consent for scientific research purposes.
In respect of existing DPA consents, the ICO states that, under the GDPR, you can continue to rely on existing consents if they are GDPR-compliant. However, if they do not meet the GDPR standard or are not properly documented, you will need to seek fresh GDPR-compliant consent, identify a different lawful basis for processing, or stop the processing.
Why consent is important
The guidance focuses on the benefits of getting consent issues right and the consequences of getting it wrong. It reiterates the fact that consent is one of six lawful bases for processing of data under the GDPR and that, should you wish to process special category data, you will also need to apply one of the conditions in Article 9(2) of the GDPR; one option being “explicit consent”.
When consent is appropriate
The guidance extinguishes the common myth that you need consent for any processing of personal data. The ICO explains that you need to choose the lawful basis that is most appropriate for your relationship with the individual and the purpose of the processing. Therefore, the correct lawful basis for processing will need to be assessed on a case-by-case basis and, in all situations, from the outset.
The guidance also touches upon consent sometimes being required under the Privacy and Electronic Communications Regulations 2003 (“PECR”) in respect of marketing communications, website cookies or other online tracking methods, or to install apps or other software on people’s devices. The EU is still in the process of finalising a new e-regulation, but pending the regulation being finalised, the existing PECR rules continue to apply (using the GDPR definition of consent).
What is valid consent
Under the GDPR, valid consent is “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”.
The ICO guidance provides a detailed explanation in respect of each component of valid consent.
How we should obtain, record and manage consent
The ICO suggests that you:
- keep your consent request separate from your general terms and conditions, and clearly direct people’s attention to it;
- use clear, straightforward language;
- adopt a simple style that your intended audience will find easy to understand;
- avoid technical or legal jargon and confusing terminology;
- use consistent language and methods across multiple consent options; and
- keep your consent requests concise and specific, and avoid vague or blanket wording.
Organisations affected by the GDPR ought to consider the ICO guidance in detail and ensure they are aware of the circumstances when consent can, and cannot, potentially be relied on as a lawful basis for processing.