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EDPB’s Updated Guidelines on Consent
Published on September 3, 2020 AUTHOR - PRIVACY RESEARCH TEAM
On May 4, 2020, the European Data Protection Board released updated guidelines on Consent (Guidelines). The Guidelines adhere to the requirements of consent provided under the General Data Protection Regulation (GDPR) and the e-Privacy Directive and have been updated to be consistent with the landmark decision of the Court of Justice of the European Union (CJEU) in Planet49 case that clarified the scope of consent requirements in relation to the processing of cookies.
Consent Requirements under the GDPR and the e-Privacy Directive:
As per Article 4(11) of the GDPR, consent of a data subject should be freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by clear affirmative action, signifies agreement to the processing of personal data relating to him or her. The same standard of consent also applies to consent under the e-Privacy Directive. The e-Privacy Directive requires organizations to provide “clear and comprehensive information” about the purposes of the processing to users before processing cookies and an opportunity to refuse any such processing. Similarly, the GDPR requires data controllers to provide information to the users consisting of at least the controller’s identity, the kind of data that will be processed, how it will be processed, and the purposes of the processing.
Consent Requirements established by the CJEU in Planet49 case:
On October 1, 2019, the CJEU issued an important decision about consent requirements in relation to the processing of cookies. The case pertained to a German website that organized a promotional lottery online. In order to participate in the promotional lottery, users were required to provide their names and addresses and beneath the input fields for the addresses, there were two explanatory text boxes accompanied with checkboxes. Amongst them, one checkbox was pre-selected for the users and the participation in the promotional lottery was conditional on at least the selection of the first checkbox. While going through the relevant requirements under GDPR, e-Privacy Directive, and EU Regulation 2016/679, the CJEU made the following important conclusions, among others:
- Pre-selected checkboxes are not valid consents as such consents are not specific or free. Pre-selected checkboxes do not indicate any active consent of data subjects and such form of passive behavior by the data subjects is not deemed to constitute valid consent.
- The requirement to provide “clear and comprehensive information” to users before processing of cookies includes providing information pertaining to the duration of the operation of cookies, whether or not third-parties may have access to cookies, and the purposes of the processing of cookies.
EDPB’s updated Guidelines on Consent:
The EDPB’s updated Guidelines reaffirms that consent is one of the six lawful bases to process personal data as listed under Article 6 of the GDPR. These Guidelines complement the CJEU’s decision in the Planet49 case that clarified that cookie consent must be specific and active. In the Guidelines, the EDPB interprets the elements of consent as defined by the GDPR as follows:
- Freely given:
“Freely given” consent implies real choice and control for data subjects. The EDBP clarifies that access to a service or functionalities cannot be made conditional on a data subject’s consent to the processing of his or her personal information. Through this interpretation, the EDBP has put an end to cookie walls and upheld the idea that access to a service cannot be made conditional on users’ consent to the processing of cookies.
Moreover, refusal or withdrawal of consent should be made as easy and straightforward as giving consent and without any detriment to the data subject, for it to be considered a freely given consent. The EDPB explains that data controllers should allow similar mechanisms for withdrawal of consent as that of giving consent. This means where consent is obtained through a service-specific user interface, the data subject must be able to withdraw consent via the same electronic interface. For example, if consent is obtained through online ticketing, the data subject must be able to withdraw his or her consent via the same online ticketing process and not via telephone call or some other mechanism.
- Specific:
“Specific” consent implies “granularity”, i.e. specific and separate consents should be obtained for separate purposes of the processing. This means data controllers are required to provide specific information to data subjects with each separate consent request about the data that are processed for each purpose. As per the Guidelines, the controller must apply the following to ensure that consent is specific.
- Purpose specification as a safeguard against function creep: This requirement serves as a protection against blurring of different purposes of processing of data;
- Granularity in consent requests: The data controllers must acquire users’ consent for each new purpose of the processing of data; and
- Clear separation of information related to obtaining consent for data processing activities from information about other matters: The data controllers must provide separate information to users for separate purposes of processing.
- Informed:
“Informed” consent implies that data controllers must provide all relevant information to data subjects about the processing of their data in clear, plain, and understandable language. The information to be provided must include at least, the following content, to ensure the transparency requirement of the GDPR.
- The controller’s identity;
- The purpose of each of the processing operations for which consent is sought;
- What (type of) data will be collected and used;
- The existence of the right to withdraw consent;
- Information about the use of the data for automated decision-making in accordance with Article 22(2)(c) of the GDPR where relevant;
- On the possible risks of data transfer due to the absence of an adequacy decision and of appropriate safeguards as described in Article 46 of the GDPR.
Unambiguous indication of data subject’s wishes:
An “unambiguous indication of the data subject’s wishes” implies a clear affirmative action of the data subject. It may refer to any written or recorded (oral) statement, including by electronic means, by which the data subject deliberately consents to process personal data. Such an action by the data subject must be distinguishable from other actions to avoid any form of ambiguity.
The Guidelines emphasize that the use of pre-ticked boxes, scrolling, swiping, silence, inactivity on the part of the data subject, or any other similar action will not under any circumstances constitute an active or unambiguous indication of data subjects’ wishes, and thereby, won’t constitute valid consent.
Takeaways:
The EDPB has offered two substantive clarities in connection with consent requirements pertaining to cookies:
- Firstly, without any doubt the Guidelines have put an end to cookie walls, i.e. access to a service cannot be made conditional on users’ consent to the processing of cookies;
- Secondly, scrolling, swiping or any other similar action has been established insufficient to constitute consent for the processing of cookies.
In light of the above, website publishers and other data controllers must review their consent policies and bring those in line with the EDPB’s latest guidelines. In addition to offering clarity on the interpretation of applicable European regulations such as the GDPR and e-Privacy Directive, the EDPB’s approach has demonstrated compliance with the emerging consensus that users should be given choice and control over their personal data.
Read: Why you need to adopt SECURITI.ai’s Consent Management Platform.
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- Assess DPA readiness
- Map data flows
- Manage vendor risk
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate the processing of rectification requests
- Automate erasure requests
- Automate object and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess PDPO readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate the processing of rectification requests
- Automate erasure requests
- Automate object and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess DPA readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Continuous monitoring and tracking
- Automate People Data Graph
- Monitor and track consent
- Assess TRA CPR readiness
- Map data flows
- Manage vendor risk
- Customize DSR Request Portal
- Automate Data Subject Access Request Handling
- Secure Fulfillment of Data Access
- Automate Processing of Rectification Requests
- Automate Erasure Requests
- Automate Objection & Restriction of Processing Requests
- Continuous Monitoring & Tracking
- Automate People Data Graph
- Meet Cookie Compliance
- Monitor & Track Consent
- Assess PIPA Readiness
- Map Data Flows
- Manage Vendor Risk
- Breach Response Notification
- Customize DSR Request Portal
- Automate Data Subject Access Request Handling
- Secure Fulfillment of Data Access
- Automate Processing of Rectification Requests
- Automate Erasure Requests
- Automate Objection & Restriction of Processing Requests
- Continuous Monitoring & Tracking
- Automate People Data Graph
- Meet Cookie Compliance
- Monitor & Track Consent
- Assess Japan APPI readiness
- Map Data Flows
- Manage Vendor Risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Qatar DPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Bahrain PDPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Privacy Policy & Notice Management
BackSnowflake is a cloud based data warehouse that allows organizations to run large scale data analytics projects to uncover business insights, run or train machine learning models, and modernize their data infrastructure.
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The Amazon S3 (Simple Storage Service) is a web-service which allows for scalable storage solutions for data archival, backup, and recovery purposes.
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Microsoft O365 is the ubiquitous productivity suite for every business worker. Users rely on Office products such as OneDrive and SharePoint to collaborate with their co-workers.
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Organizations want to migrate their on-premises data to cloud data stores to take advantage of scale and flexibility while reducing operational cost of managing on-premises infrastructure. However, due to privacy regulations such as GDPR, CCPA administrators have to ensure that data is migrated in compliance with these laws.
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Protecting sensitive content is a priority for all organizations, however, due to volume of sensitive content and
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While data aids in business decision making, global privacy regulations such as GDPR, CPRA require organization to identify personal & sensitive data & use only for its intended purpose and implement adequate protection.
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Securiti enables organizations to meet multiple regulations around the world and helps with compliance requirements through AI-driven PI data discovery, DSR automation, documented accountability, enhanced visibility into data processing activities and AI-driven process automation.
Securiti is a complete PrivacyOps Solution.
View all solutionsThe California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 and is scheduled to come into effect on January 01, 2020. Often compared to GDPR, CCPA protects consumers from mismanagement of their personal data and gives the consumer control over what data is collected, processed, shared or sold.
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The California Privacy Rights Act (CPRA) will take effect from January 1, 2023, and will apply to personal information collected on or after January 1, 2022. Enforcement of the CPRA will start six months later (July 1, 2023). The CPRA builds upon the CCPA, strengthening user privacy for California residents.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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On 13 October 2020, the National People's Congress of the Republic of China submitted the long awaited draft of the Personal Information Protection Law (Draft PIPL) to the Standing Committee meeting for preliminary review. This draft was officially released for the public consultation on 21 October, 2020. The consultation period will last until 19 November 2020.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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South Korea has a general law and several special laws that cover data protection and individuals' privacy. South Korea's data protection regime is considered one of the strictest data protection regimes owing to its notification requirements, opt-in consent, extensive data subject rights, mandatory data breach notifications, and heavy sanctions in case of non-compliance.
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The Act on the Protection of Personal Information (the "APPI'') regulates personal related information and applies to any Personal Information Controller (the “PIC''), that is a person or entity providing personal related information for use in business in Japan. The APPI also applies to the foreign PICs which handle personal information of data subjects (“principals”) in Japan for the purpose of supplying goods or services to those persons.
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Qatar is the first gulf country that has passed a national data privacy law and has paved the way for all other gulf countries to follow suit. In 2016, Qatar enacted Law no. 13 Concerning Personal Data Protection (the “DPL”). Qatar became the first Gulf Cooperation Council (GCC) member state to issue an “European Style” applicable data protection law. The DPL establishes a certain degree of personal data protection, provides data subject rights, and prescribes the guidelines for organizations for the processing of personal data within Qatar.
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Bahrain has become a part of the countries that have enacted a data privacy regulation to protect the rights of their residents. On 12 July 2018, Bahrain drafted its law on data protection regulation, Law No. 30. This then went on to go into effect on the 1st of August 2019 as the Bahrain Personal Data Protection Law (PDPL) and supersedes all other laws. The PDPL recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate purposes.
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