Guidelines 05/2020 on Consent under Regulation 2016/679 (GDPR)

Section 3.2  Specific

55. Article 6(1)(a) confirms that the consent of the data subject must be given in relation to “one or more specific” purposes and that a data subject has a choice in relation to each of them. The requirement that consent must be ‘specific’ aims to ensure a degree of user control and transparency for the data subject. This requirement has not been changed by the GDPR and remains closely linked to the requirement of ‘informed’ consent. At the sametime, it must be interpreted in line with the requirement for ‘granularity’ to obtain ‘free’ consent. In sum, to comply with the element of ‘specific’ the controller must apply:

• i Purpose specification as a safeguard against function creep,

• ii Granularity in consent requests, and

• iii Clear separation of information related to obtaining consent for data processing activities from information about other matters.

56. Ad. (i):  Pursuant to Article 5(1)(b) GDPR, obtaining valid consent is always preceded by the determination of a specific, explicit and legitimate purpose for the intended processing activity. The need for specific consent in combination with the notion of purpose limitation in Article 5 (1) (b) functions as a safeguard against the gradual widening or blurring of purposes for which data is processed, after a data subject has agreed to the initial collection of the data. This phenomenon, also known as function creep, is a risk for data subjects, as it may result in unanticipated use of personal data by the controller or by third parties and in loss of data subject control.

57. If the controller is relying on Article 6 (1) (a), data subjects must always give consent for a specific processing purpose. In line with the concept of purpose limitation, Article 5 (1) (b) and recital 32, consent may cover different operations, as long as these operations serve the same purpose. It goes without saying that specific consent can only be obtained when data subjects are specifically informed about the intended purposes of data use concerning them.

58. Notwithstanding the provisions on compatibility of purposes, consent must be specific to the purpose. Data subjects will give their consent with the understanding that they are in control and their data will only be processed for those specified purposes. If a controller processes data based on consent and wishes to process the data for another purpose, too, that controller needs to seek additional consent for this other purpose unless there is another lawful basis, which better reflects the situation.

59. Example 11:  A cable TV network collects subscribers’ personal data, based ontheir consent, to presentthem with personal suggestions for new movies they might be interested in based on their viewinghabits. After a while, the TV network decides it would like to enable third parties to send (or display)targeted advertising on thebasis of the subscriber’s viewing habits. Given this new purpose, newconsent is needed.

60. Ad. (ii):  Consent mechanisms must not only be granular to meet the requirement of ‘free’, but also to meet the element of ‘specific’. This means, a controller that seeks consent for various different purposes should provide a separate opt-in for each purpose, to allow users to give specific consent for specific purposes.

61. Ad. (iii):  Lastly, controllers should provide specific information with each separate consent requestabout the data that are processed for each purpose, in order to make data subjects aware of the impact of the different choices they have. Thus, data subjects are enabled to give specific consent. This issue overlaps with the requirement that controllers must provide clear information, as discussed in paragraph 3.3. below.