ICO publishes final version of guidance on consent

A briefing note

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.

CONTACT CHRIS

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Chris Cook on 01727 798089.
The team at SA Law LLP has ‘excellent knowledge of employment law’. Practice head Chris Cook is recommended.
The Legal 500
SA Law Work Life red mug and glasses
Stained glass window Employment SA Law
Views & Insights
Justifying 'fat cat' pay

Partner, Keely Rushmore examines what the pay ratio reporting could mean for your company

Read More
Stained glass window
Views & Insights
Should The Equalities Act 2010 be updated?

Chris Cook, partner and head of employment at SA Law, comments on a recent study which found that one in three employers admitted they were less likely…

Read More
Stained glass window
Views & Insights
Should employers modify dress codes in this heatwave?

Partner and Director of Finance and Business support, Gill Garrett, comments in The Times on whether extreme weather should see alterations to dress codes…

Read More
Chris Cook handles the full range of employment law for both individuals and organisations. He receives particular recognition for his strong TUPE expertise.…
Chambers & Partners
Phone Box with Man in a Bowler Hat
Stained glass window
Views & Insights
Getting to the meat of employee choice

Companies must be made aware of discrimination laws when dictating what workers can and can't do, says Keely Rushmore, Partner at SA Law.

Read More
Stained glass window
Views & Insights
Worker versus Self-Employed

The Gig economy makes more headlines as The Supreme Court agree Mr Smith was a worker and Pimlico plumbers had fallen foul of employment rights.

Read More
Stained glass window
Views & Insights
Reality TV and the protection of stars' welfare

Head of Employment at SA Law, Chris Cook comments in The Daily Star on the increasing pressure for production companies to ensure the welfare of contestants.

Read More
Stained glass window
Views & Insights
The Government's guidance on The Trade Union Act 2016

How should employers' implement the Trade Union Act 2016? Head of Employment at SA Law, Chris Cook explains.

Read More
Stained glass window
Views & Insights
Dress codes and sex discrimination - The Government's response

Read Head of Employment, Chris Cook's analysis of the Government's response to the 2015 Nicola Thorp "wear heels or go home" controversy.

Read More

© SA LAW 2018

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.