Guidelines 05/2020 on Consent under Regulation 2016/679 (GDPR)
SECTION 4 OBTAINING EXPLICIT CONSENT
91. Explicit consent is required in certain situations where serious data protection risk emerge, hence, where a high level of individual control over personal data is deemed appropriate. Under the GDPR, explicit consent plays a role in Article 9 on the processing of special categories of data, the provisions on data transfers to third countries or international organisations in the absence of adequate safeguards in Article 49, and in Article 22 on automated individual decision-making, including profiling.
92. The GDPR prescribes that a “statement or clear affirmative action” is a prerequisite for ‘regular’ consent. As the ‘regular’ consent requirement in the GDPR is already raised to a higher standard compared to the consent requirement in Directive 95/46/EC, it needs to be clarified what extra efforts a controller should undertake in order to obtain the explicit consent of a data subject in line with the GDPR.
93. The term explicit refers to the way consent is expressed by the data subject. It means that the data subject must give an express statement of consent. An obvious way to make sure consent is explicit would be to expressly confirm consent in a written statement. Where appropriate, the controller could make sure the written statement is signed by the data subject, in order to remove all possible doubt and potential lack of evidence in the future.
94. However, such a signed statement is not the only way to obtain explicit consent and, it cannot be said that the GDPR prescribes written and signed statements in all circumstances that require valid explicit consent. For example, in the digital or online context, a data subject may be able to issue the required statement by filling in an electronic form, by sending an email, by uploading a scanned document carrying the signature of the data subject, or by using an electronic signature. In theory, the use of oral statements can also be sufficiently express to obtain valid explicit consent, however, it may be difficult to prove for the controller that all conditions for valid explicit consent were met when the statement was recorded.
95. An organisation may also obtain explicit consent through a telephone conversation, provided that the information about the choice is fair, intelligible and clear, and it asks for a specific confirmation from the data subject (e.g. pressing a button or providing oral confirmation).
96. Example 17: A data controller may also obtain explicit consent from a visitor to its website by offering an explicit consent screen that contains Yes and No check boxes, provided that the text clearly indicates the consent, for instance “I, hereby, consent to the processing of my data”, and not for instance, “It is clear to me that my data will be processed”. It goes without saying that the conditions for informed consent as well as the other conditions for obtaining valid consent should be met.
97. Example 18: A clinic for cosmetic surgery seeks explicit consent from a patient to transfer his medical record to an expert whose second opinion is asked on the condition of the patient. The medical record is a digital file. Given the specific nature of the information concerned, the clinic asks for an electronic signature of the data subject to obtain valid explicit consent and to be able to demonstrate that explicit consent was obtained.
98. Two stage verification of consent can also be a way to make sure explicit consent is valid. For example, a data subject receives an email notifying them of the controller’s intent to process a record containing medical data. The controller explains in the email that he asks for consent for the use of a specific set of information for a specific purpose. If the data subjects agrees to the use of this data, the controller asks him or her for an email reply containing the statement ‘I agree’. After the reply is sent, the data subject receives a verification link that must be clicked, or an SMS message with a verification code, to confirm agreement.
99. Article 9(2) does not recognize “necessary for the performance of a contract” as an exception to the general prohibition to process special categories of data. Therefore, controllers and Member States that deal with this situation should explore the specific exceptions in Article 9(2) subparagraphs (b) to (j). Should none of the exceptions (b) to (j) apply, obtaining explicit consent in accordance with the conditions for valid consent in the GDPR remains the only possible lawful exception to process such data.
100. Example 19: An airline company, Holiday Airways, offers an assisted travelling service for passengers that cannot travel unassisted, for example due to a disability. A customer books a flight from Amsterdam to Budapest and requests travel assistance to be able to board the plane. Holiday Airways requires her to provide information on her health condition to be able to arrange the appropriate services for her (hence, there are many possibilities e.g. wheelchair on the arrival gate, or an assistant travelling with her from A to B.) Holiday Airways asks for explicit consent to process the health data of this customer for the purpose of arranging the requested travel assistance. The data processed on the basis of consent should be necessary for the requested service. Moreover, flights to Budapest remain available without travel assistance. Please note that since that data are necessary for the provision of the requested service, Article 7 (4) does not apply.
101. Example 20: A successful company is specialised in providing custom-made ski-and snowboard goggles, and other types of customised eyewear for outdoors sports. The idea is that people could wear these without their own glasses on. The company receives orders at a central point and delivers products from a single location all across the EU.
102. In order to be able to provide its customised products to customers who are short-sighted, this controller requests consent for the use of information on customers’ eye condition. Customers provide the necessary health data, such as their prescription data online when they place their order. Without this, it is not possible to provide the requested customized eyewear. The company also offers series of goggles with standardized correctional values. Customers that do not wish to share health data could opt for the standard versions. Therefore, an explicit consent under Article 9 is required and consent can be considered to be freely given.