Article 7 GDPR

← Article 7: Conditions for consent →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 7: Conditions for consent

1. Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.

2. If the data subject's consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding.

3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.

4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.

Relevant Recitals

Recital 32: Conditions for Consent

Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject's agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject's consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.

Recital 33: Consent for Scientific Research

It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have the opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose.

Recital 42: Proof and Requirements for Consent

Where processing is based on the data subject's consent, the controller should be able to demonstrate that the data subject has given consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.

Recital 43: Freely Given Consent

In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation. Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

Commentary

Article 7 GDPR regulates the "conditions for consent". It specifies the definition of consent set out in Article 4(11) GDPR and, by integrating Article 6(1)(a) GDPR, contributes in defining what legal requirements a valid consent should have. The provision also places the burden of proof on the controller for the existence of consent.

(1) Obligation to Provide Proof of Consent

Under Article 7(1) GDPR, the controller must demonstrate to have obtained a valid consent, including whether it was informed, freely given, unambiguous and specific. Scholars have convincingly noted that Article 7(1) does not provide for another consent requirement (say, "demonstrability") but rather creates a distribution of risks during a possible legal procedure. If, for example, the existence of an effective consent is disputed and the controller cannot provide evidence of this, it can be assumed that there is no consent.

Since consent can be given through a "clear, affirmative act" (see Recital 32 GDPR) in the form of a written, electronic or oral declaration, data controllers are free with regard to the specific form of providing this evidence. However, in practice, they will likely "need to keep a registry of acquired consents, as they will need to be able to demonstrate that consent has been obtained in situations where the data subject questions her or his provision of consent. In online environments, the consent provided should be logged".

The elements contained in such registry may vary depending on the complexity of the processing. For instance, since pre-ticked boxes have been declared not unambiguous and therefore unlawful , controllers may need to implement consent confirmation systems that can demonstrate the clear intention of the user. An example could be the sending of an email to the data subject requiring him or her to click on a confirmation button (double opt-in). Once the user provides the confirmation, the associated token may be stored in the consent registry for future evidence purposes.

(2) Consent Request in the Context of a Written Declaration concerning other Matters

Article 7(2) applies when the communication between data subject and controller takes place in written form and it concerns other matters. In this case, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters. The provision ensures that the consent request is given appropriate prominence so to reduce the risk of consent being inadvertently given. To do so, Article 7(2) GDPR establishes layout and transparency requirements.

In the Context of a Written Declaration

For the provision to apply, the communication between data subject and controller must meet two requirements. First, it must take occur in written form and, second, it must concern other matters. The provision does not apply in other cases.

The "written form" requirement is to be interpreted broadly. The electronic form is therefore at least also covered by this provision. Since data protection law is particularly important in a digital context and the legislator aimed to provide comprehensive protection for those affected, the provision can also be used in digital legal transactions.

The communication must concern other matters. That is the case, for instance, of complex legal documents dealing with different types of processing and requiring different legal basis for each of them. If any of these processing activities relies upon consent, then the provision applies.

Request for Consent: Requirements

Under Recital 42, where consent is given as part of a written declaration concerning other matters, safeguards should be provided to ensure that the data subject is aware of the meaning of their actions. Article 7(2) provides for such safeguards and requires that the request for consent shall be (i) presented in a manner which is clearly distinguishable from the other matters and (ii) formulated in an intelligible and easily accessible way, using clear and plain language.

First, it should be "distinguishable" from other statements. In data protection terms, this translates into a statement which clearly authorizes the controller to carry out a specific processing operation. Therefore, the request for consent "should be highlighted by being placed in a frame or printed in a different font or colour - to name just a few options. The requirement is aimed at stopping the common practice whereby businesses include the text for consenting to processing of personal data in the fine print of agreements".

Second, a request for consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language. This means that even users with poor reading skills due to a low level of education or lack of language skills should understand the text and consciously express their consent. It follows that if the data subject is not able to grasp the meaning of their declaration, the controller must provide further clarification. Further, under Recital 42 and "in accordance with Council Directive 93/13/EEC" (the Unfair Contract Terms Directive or "UCTD"), the request must not contain unfair terms.

Failure to Meet the Requirements

If any part of the statement (provided by the controller to the data subject) does not meet the above-mentioned requirements or anyway "constitutes an infringement of this Regulation [it] shall not be binding". In data protection terms, this may easily translate into a violation of the lawfulness principle (the claimed legal basis is not present, see Articles 5(1)(a) and 6(1)(a) GDPR) and should bring to the immediate deletion of all the data collected.

(3) Right to Withdraw Consent

Data subjects can withdraw their consent at any time and should be made aware of this right before granting consent. Withdrawal should be as easy as giving it; however, the withdrawal will not retroactively affect any processing based on the consent prior to its withdrawal.

Article 7(3) GDPR clarifies that the withdrawal of consent must be as simple as the granting of consent. In the case of electronic declarations, revocation should be enabled via the same tool used to provide the consent. In this perspective, a technical challenge could be the development of an appropriate revocation environment, especially if the person concerned does not have a user account through which they can adjust the privacy settings.

The withdrawal has immediate effect and interrupts any consent-based data processing. The withdrawal has an effect on future data processing (ex nunc). According to a certain interpretation, if the person concerned wants to delete the data, they have to submit a clear request in that sense under Article 17(1)(b) GDPR.

(4) Assessing the Freely Given Requirement

Article 7(4) GDPR provides some useful guidance as to the factors to be taken into account in assessing whether consent has been freely given or not. The provision focusses on the common practice of linking the provision of a service to the granting of consent for the processing of data which is not necessary for the provision of the service (bundled consent). However, the EDPB notes, Article7(4) has been drafted in a non-exhaustive fashion by using the words ‘inter alia’. This means that bundled consent is not the only factor of the analysis and 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”. These other elements are analysed below.

Imbalance of Power

The first critical factor is the presence of imbalance of power between the data subject and the controller. The typical example is the relationship between citizens and public authorities where it seems clear that in the majority of cases the data subject will have no viable alternative but to accept the data processing. Another case of imbalance of power also occurs in the employment relationship where it seems hardly credible that the data subject would refuse his consent without facing or at least perceiving the risk of detriment and negative effects on his employment position. The EDPB also points out that imbalances of power are not limited to relationships with public authorities and employers but can occur in any other case where there is "any element of compulsion, pressure or inability to exercise free will".

Bundled Consent

The second factor identified by the Board is the hypothesis set out in Article 7(4) which consists of “bundling” consent with acceptance of terms or conditions, or “tying” the provision of a contract or a service to a request for consent to process personal data that are not necessary for the performance of that contract or service. Article 7(4) seeks to ensure that the purpose of personal data processing is not “disguised nor bundled with the provision of a contract of a service for which these personal data are not necessary. In doing so, the GDPR ensures that the processing of personal data for which consent is sought cannot become directly or indirectly the counter-performance of a contract. The two lawful bases for the lawful processing of personal data, i.e. consent and contract cannot be merged and blurred”. Such practice is considered highly undesirable because and if consent is given in this situation, it is presumed to be not freely given (Recital 43).

Lack of Granularity

Another critical profile identified by the Board relates to the lack of granularity in the provision of consent. Whenever a controller forces the data subject to give a single consent for multiple types of processing (e.g., newsletters and communication to third parties), "there is a lack of freedom [...] the solution to comply with the conditions for valid consent lies in granularity, i.e. the separation of these purposes and obtaining consent for each purpose".

Detriment

The controller must be able to demonstrate that refusal or withdrawal of consent will not have a detrimental effect on the data subject. Any kind of pressure, coercion or significant adverse effect, including reduction of service, is likely to generate a detrimental effect and thus invalidate consent.

Decisions

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