Guidelines 05/2020 on Consent under Regulation 2016/679 (GDPR)
Section 3.4 Unambiguous indication of wishes
75. The GDPR is clear that consent requires a statement from the data subject or a clear affirmative act, which means that it must always be given through an active motion or declaration. It must be obvious that the data subject has consented to the particular processing.
76. Article 2(h) of Directive 95/46/EC described consent as an “indication of wishes by which the data subject signifies his agreement to personal data relating to him being processed”. Article 4(11) GDPR builds on this definition, by clarifying that valid consent requires anunambiguous indication by means of a statement or by a clear affirmative action, in line with previous guidance issued by the WP29.
77. A “clear affirmative act” means that the data subject must have taken a deliberate action to consent to the particular processing. Recital 32 sets out additional guidance on this. Consent can be collected through a written or (a recorded) oral statement, including by electronic means.
78. Perhaps the most literal way to fulfil the criterion of a “written statement” is to make sure a data subject writes in a letter or types an email to the controller explaining what exactly he/she agrees to. However, this is often not realistic. Written statements can come in many shapes and sizes that could be compliant with the GDPR.
79. Without prejudice to existing (national) contract law, consent can be obtained through a recorded oral statement, although due note must be taken of the information available to the data subject, prior to the indication of consent. The use of pre-ticked opt-in boxes is invalid under the GDPR. Silence or inactivity on the part of the data subject, as well as merely proceeding with a service cannot be regarded as an active indication of choice.
80. Example 14: When installing software, the application asks the data subject for consent to use non-anonymised crash reports to improve the software. A layered privacy notice providing the necessary information accompanies the request for consent. By actively ticking the optional box stating, “I consent”, the user is able to validly perform a ́clear affirmative act ́ to consent to the processing.
81. A controller must also beware that consent cannot be obtained through the same motion as agreeing to a contract or accepting general terms and conditions of a service. Blanket acceptance of general terms and conditions cannot be seen as a clear affirmative action to consent to the use of personal data. The GDPR does not allow controllers to offer pre-ticked boxes or opt-out constructions that require an intervention from the data subject to prevent agreement (for example ‘opt-out boxes’).
82. When consent is to be given following a request by electronic means, the request for consent should not be unnecessarily disruptive to the use of the service for which the consent is provided. An active affirmative motion by which the data subject indicates consent can be necessary when a less infringing or disturbing modus would result in ambiguity. Thus, it may be necessary that a consent request interrupts the use experience to some extent to make that request effective.
83. However, within the requirements of the GDPR, controllers have the liberty to develop a consent flow that suits their organisation. In this regard, physical motions can be qualified as a clear affirmative action in compliance with the GDPR.
84. Controllers should design consent mechanisms in ways that are clear to data subjects. Controllers must avoid ambiguity and must ensure that the action by which consent is given can be distinguished from other actions. Therefore, merely continuing the ordinary use of a website is not conduct from which one can infer an indication of wishes by the data subject to signify his or her agreement to a proposed processing operation.
85. Example 15: Swiping a bar on a screen, waiving in front of a smart camera, turning a smartphone around clockwise, or in a figure eight motion may be options to indicate agreement, as long as clear information is provided, and it is clear that the motion in question signifies agreement to a specific request (e.g. if you swipe this bar to the left, you agree to the use of information X for purpose Y. Repeat the motion to confirm.”). The controller must be able to demonstrate that consent was obtained this way and data subjects must be able to withdraw consent as easily as it was given.
86. Example 16: Based on recital 32, actions such as scrolling or swiping through a webpage or similar user activity 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.
87. In the digital context, many services need personal data to function, hence, data subjects receive multiple consent requests that need answers through clicks and swipes every day. This may result in a certain degree of click fatigue: when encountered too many times, the actual warning effect of consent mechanisms is diminishing.
88. This results in a situation where consent questions are no longer read. This is a particular risk to data subjects, as, typically, consent is asked for actions that are in principle unlawful without their consent. The GDPR places upon controllers the obligation to develop ways to tackle this issue.
89. An often-mentioned example to do this in the online context is to obtain consent of Internet users via their browser settings. Such settings should be developed in line with the conditions for valid consent in the GDPR, as for instance that the consent shall be granular for each of the envisaged purposes and that the information to be provided, should name the controllers.
90. In any event, consent must always be obtained before the controller starts processing personal data for which consent is needed. WP29 has consistently held in its opinions that consent should be given prior to the processing activity. Although the GDPR does not literally prescribe in Article 4 (11) that consent must be given prior to the processing activity, this is clearly implied. The heading of Article 6 (1) and the wording “has given” in Article 6 (1) (a) support this interpretation. It follows logically from Article 6 and Recital 40 that a valid lawful basis must be present before starting a data processing. Therefore, consent should be given prior to the processing activity. In principle, it can be sufficient to ask for a data subject’s consent once. However, controllers do need to obtain a new and specific consent if purposes for data processing change after consent was obtained or if an additional purpose is envisaged.