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

Paragraph 3.1.1  Imbalance of power

16. Recital 43 clearly indicates that it is unlikely that public authorities can rely on consent for processing as whenever the controller is a public authority, there is often a clear imbalance of power in the relationship between the controller and the data subject. It is also clear in most cases that the data subject will have no realistic alternatives to accepting the processing (terms) of this controller. The EDPB considers that there are other lawful bases that are, in principle, more appropriate to the activity of public authorities.

17. Without prejudice to these general considerations, the use of consent as a lawful basis for data processing by public authorities is not totally excluded under the legal framework of the GDPR. The following examples show that the use of consent can be appropriate under certain circumstances.

18. Example 2:  A local municipality is planning road maintenance works. As the road works may disrupt traffic for a long time, the municipality offers its citizens the opportunity to subscribe to an email list to receive updates on the progress of the works and on expected delays. The municipality makes clear that there is no obligation to participate and asks for consent to use email addresses for this (exclusive) purpose. Citizens that do not consent will not miss out on any core service of the municipality or the exercise of any right, so they are able to give or refuse their consent to this use of data freely. All information on the road works will also be available on the municipality’s website.

19. Example 3:  An individual who owns land needs certain permits from both her local municipality and from the provincial government under which the municipality resides. Both public bodies require the same information for issuing their permit, but are not accessing each other’s data bases. Therefore, both ask for the same information and the land owner sends out her details to both public bodies. The municipality and the provincial authority ask for her consent to merge the files, to avoid duplicate procedures and correspondence. Both public bodies ensure that this is optional and that the permit requests will still be processed separately if she decides not to consent to the merger of her data. The land owner is able to give consent to the authorities for the purpose of merging the files freely.

20. Example 4:  A public school asks students for consent to use their photographs in a printed student magazine. Consent in these situations would be a genuine choice as long as students will not be denied education or services and could refuse the use of these photographs without any detriment.

21. An imbalance of power also occurs in the employment context. Given the dependency that results from the employer/employee relationship, it is unlikely that the data subject is able to deny his/her employer consent to data processing without experiencing the fear or real risk of detrimental effects as a result of a refusal. It is unlikely that an employee would be able to respond freely to a request for consent from his/her employer to, for example, activate monitoring systems such as camera observation in a workplace, or to fill out assessment forms, without feeling any pressure to consent. Therefore, the EDPB deems it problematic for employers to process personal data of current or future employees on the basis of consent as it is unlikely to be freely given. For the majority of such data processing at work, the lawful basis cannot and should not be the consent of the employees (Article 6 (1)(a)) due to the nature of the relationship between employer and employee.

22. However, this does not mean that employers can never rely on consent as a lawful basis for processing. There may be situations when it is possible for the employer to demonstrate that consent actually is freely given. Given the imbalance of power between an employer and its staff members, employees can only give free consent in exceptional circumstances, when it will have no adverse consequences at all whether or not they give consent.

23. Example 5:  A film crew is going to be filming in a certain part of an office. The employer asks all the employees who sit in that area for their consent to be filmed, as they may appear in the background of the video. Those who do not want to be filmed are not penalised in any way but instead are given equivalent desks elsewhere in the building for the duration of the filming.

24. Imbalances of power are not limited to public authorities and employers, they may also occur in other situations. As highlighted by the WP29 in several Opinions, consent can only be valid if the data subjectis able to exercise a real choice, and there is no risk of deception, intimidation, coercion or significant negative consequences (e.g. substantial extra costs) if he/she does not consent. Consent will not be free in cases where there is any element of compulsion, pressure or inability to exercise free will.