UPDATES IN A EDPB's GUIDELINES ON CONSENT

07.05.2020

On 10 April 2018, the European Data Protection Board (“EDPB”) has endorsed the “Guidelines on consent” which contains the definition and conditions of valid consent and various examples of different situations. Later on, to clarify some confusion, the Guidelines updated and published on 04.05.2020. Updates have been made on two issues; section on conditionality and the section on the unambiguous indication of wishes. 

• The Section on the Conditionality

According to Guidelines on consent, valid consent must have certain qualifications. These; it is to be freely given, to be specific, to be informed and unambiguous indication of wishes.  

The element to be freely given indicates that data subjects must give their consent with their free will and without feeling compelled or will endure negative consequences if they do not consent. Also, consent should not be conditional. 

The updated Guidelines has explained the conditionality in a wider perspective and its effect on valid consent. In this context, the Guidelines firstly stated that the EDPB considers that consent cannot be considered as freely given if a controller argues that a choice exists between its service that includes consenting to the use of personal data for additional purposes on the one hand and an equivalent service offered by a different controller on the other hand. 

Another update that added in the Guidelines is; in order for consent to be freely given, access to services and functionalities must not be made conditional on the consent of a user to the storing of information or gaining of access to information already stored, in the terminal equipment of a user. With this statement, the EDPB actually wanted to answer questions about cookie walls. The Guidelines also includes an example of the subject. 

According to the example, if a website provider puts into place a script that will block content from being visible except for a request to accept cookies and the information about which cookies are being set and for what purposes data will be processed and there is no possibility to access the content without clicking on the “Accept cookies” button; since the data subject is not presented with a genuine choice, its consent is not freely given.

• The Section on the Unambiguous Indication of Wishes

The second update on the Guidelines is an example of a situation considering to unambiguous indication of the wishes element of the valid consent.

The example is about actions such as scrolling or swiping through a webpage or similar user activities. These activities will not under any circumstances satisfy the requirement of a clear and affirmative action: such actions may be difficult to distinguish from other activity or interaction by a user, and therefore determining that an unambiguous consent has been obtained will also not be possible.

Furthermore, in such a case, it will be difficult to provide a way for the user to withdraw consent in a manner that is as easy as granting it. Hence, the consents for actions such as scrolling or swiping through a webpage can not be considered as valid consent.

You can find the updated Guidelines on consent  here.

Should you have any queries and/or remarks, please do not hesitate to contact us. 

Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr