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

Section 3.1  Free / freely given

13. The element “free” implies real choice and control for data subjects. As a general rule, the GDPR prescribes that if the data subject has no real choice, feels compelled to consent or will endure negative consequences if they do not consent, then consent will not be valid. If consent is bundled up as a non-negotiable part of terms and conditions it is presumed not to have been freely given. Accordingly, consent will not be considered to be free if the data subject is unable to refuse or withdraw his orher consent without detriment. The notion of imbalance between the controller and the data subject is also taken into consideration by the GDPR.

14. When assessing whether consent is freely given, one should also take into account the specific situation of tying consent into contracts or the provision of a service as described in Article 7 (4). Article 7 (4) has been drafted in a non-exhaustive fashion by the words “inter alia”, meaning that there may be a range of other situations, which are caught by this provision. In general terms, any element of inappropriate pressure or influence upon the data subject (which may be manifested in many different ways) which prevents a data subject from exercising their free will, shall render the consent invalid.

15. Example 1:    A mobile app for photo editing asks its users to have their GPS localisation activated for the use of its services. The app also tells its users it will use the collected data for behavioural advertising purposes. Neither geolocalisation or online behavioural advertising are necessary for the provision of the photo editing service and go beyond the delivery of the core service provided. Since users cannot use the app without consenting to these purposes, the consent cannot be considered as being freely given.