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By Monika Kuschewsky and Thibaut D’hulst

On 13 July 2011, the Article 29 Working Party adopted an opinion on the definition of consent (WP 187). The opinion—which makes to a large extent reference to previous opinions and contains a number of examples—basically reconfirms the Working Party’s rather strict and narrow interpretation of the notion of consent.

The opinion notes that there are different approaches and divergent views of good practice in different Member States and aims to clarify matters to ensure a common understanding of the existing legal framework. The opinion also briefly discusses how consent is used under Directive 2002/58/EC (the ePrivacy Directive). In addition, the opinion contains a number of recommendations for the ongoing review of Directive 95/46/EC (the Data Protection Directive).

The opinion recognises that there is an overlap between the notion of consent under the Data Protection Directive and the interpretation of consent in other fields of law, particularly contract law. Accordingly, national civil law requirements may also be relevant when assessing the validity of consent under the Data Protection Directive.

The opinion stresses that the use of consent in the right context is crucial. Whilst consent constitutes one of the possible legal grounds for the lawful processing of personal data, it is not always the primary or the most desirable legal basis and in some cases may even be a weak basis. Moreover, the opinion underlines that when a data controller relies on consent as a ground for lawfulness, such consent does not exempt the data controller from its other obligations under the Data Protection Directive.

Definition of consent

The Data Protection Directive defines consent as follows:

“the data subject’s consent shall mean 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.”

The opinion explains the notion of consent on the basis of an analysis of its four key elements.

The first element is “any …. indication of his wishes … signifying…” According to the opinion, this implies a need for action; in other words, passive behaviour or simple inaction is insufficient.

Moreover, consent must be “freely given.” The data subject must have a real choice. There should not be any risk of deception, intimidation, coercion or significant negative consequences.

The Working Party recalls that in an employment relationship, employees can be in a situation of dependence on the data controller, and it would need to be checked carefully on a contextual basis whether consent can be considered to be “freely given.” In most cases, the processing of employee personal data by the employer can be based on one of the other legal grounds for data processing.

In addition, consent must be “specific.” The opinion considers in particular blanket consent without specifying the exact purposes of the processing as unacceptable. Rather, the consent must be intelligible, refer clearly and precisely to the scope and consequences of the data processing and must be given in relation to the different aspects of the processing. In addition, consent clauses should be separate from any general terms and conditions.

The last element is “informed.” In other words, consent must be based upon an appreciation and understanding of the facts and implications of an action. This basically requires that the data subjects be given in a clear and understandable manner, accurate and full information of all relevant issues, including those specified in Articles 10 and 11 of the Data Protection Directive.

In this respect, the Working Party stresses the importance of the quality of the information provided, which a regular/average user should be able to understand, as well as the accessibility and visibility of the information. The Working Party considers it to be a matter of good practice to regularly review individuals’ choices, informing them of their current choices and offering them the possibility to confirm or withdraw consent.

Unambiguous consent as a ground for the lawful processing of personal data
Article 7 lit. (a) of the Data Protection Directive establishes consent as a ground for making processing of (non-sensitive) personal data legitimate, but requires that such consent has been given unambiguously. According to the opinion, this means that the procedure to seek and to give consent must leave no doubt as to the data subject’s intention to deliver consent. Again, there are no requirements as to the form consent can take; however, the consent must either be clear express consent or clear inferred consent. In any event, unambiguous consent does not fit well with procedures to obtain consent based on inaction or silence from individuals. In addition, the Working Party advises data controllers to adopt adequate procedures to retain evidence of consent and ensure that the person giving consent is actually the data subject.

Explicit consent for the lawful processing of special categories of data
Consent is also a legal ground on the basis of which special categories of personal data may be processed (Article 8(2) lit. (a) of the Data Protection Directive); however, the consent must be “explicit,” which is understood as express consent. This encompasses all situations where an individual is offered a choice to agree or disagree and respond actively to a question for a particular use or disclosure of their personal information, in writing or orally. Nonetheless, in practice, data controllers are advised to resort to written consent for evidentiary reasons. According to the Working Party, consent that is inferred will not normally meet the requirement of Article 8(2) lit. (a) of the Data Protection Directive.

Data transfer to non-adequate third countries
Personal data may be transferred to third countries that are not providing an adequate level of protection, if the data subject has given his “unambiguous consent” to the proposed transfer (Article 26(1) lit. (a) of the Data Protection Directive). Hence, the requirements are identical to those under Article 7 lit. (a) of the Data Protection Directive [consent as a ground for the lawful processing of (non-sensitive) personal data].

ePrivacy Directive
The definition of consent of Directive 95/46/EC also applies under the ePrivacy Directive. The criteria to determine valid consent are therefore the same.

There are various provisions in the ePrivacy Directive that contain language indicating that consent is to be provided prior to the processing (Articles 6(3), 9 and 13 of the ePrivacy Directive). With respect to Article 5(3), which contains a specific rule regarding the storing of information or gaining of access to information on a user’s terminal (the so-called cookie clause), the Working Party explains that the requirement that consent must be provided prior to the processing clearly follows from the wording of the provision. The need for consent should also be distinguished from the right to object ex Article 13 of the ePrivacy Directive and the Working Party reiterates its view that consent based on the lack of individuals’ actions, for example, through pre-ticked boxes or browser settings which would accept by default the targeting of the user do not meet the requirements of valid consent.

The ePrivacy Directive also contains various provisions regarding the possibility to withdraw consent. In case the withdrawal is exercised, decisions or processes previously taken on the basis of consent cannot simply be annulled; however, the data should be deleted, unless there is another legal basis justifying its further storage.

Conclusion and recommendations of Working Party
The Working Party concludes that the actual legal framework on consent constitutes a “well thought out set of rules.” Nevertheless, the opinion suggests a number of changes. For instance, the Working Party recommends incorporating the requirement of “unambiguous” consent into the standard definition of consent and clarifying and harmonising this concept further throughout the EU. In addition, the Working Party recommends that data controllers be required to put in place mechanisms to demonstrate consent. Moreover, an express clause setting up the right of individuals to withdraw their consent and an explicit requirement regarding the quality and accessibility of the information forming the basis for consent should be added and the notion that consent must be given before the processing starts be reinforced.

Finally, the opinion recommends enhancing the protection of individuals lacking legal capacity (for instance, requiring consent from parents or including an age threshold).

Monika Kuschewsky is a German lawyer and partner of Van Bael & Bellis in Brussels. She is the head of the firm’s European Data Protection Practice and qualified as a company data protection officer (Betrieblicher Datenschutzbeauftragter (GDDcert.)).

Thibaut D’hulst is a Belgian lawyer and an associate of Van Bael & Bellis. He is a member of the firm’s European Data Protection Practice.

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