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 to defining what legal requirements a valid consent should meet. The provision also places the burden of proving the existence of consent on the controller.

While paragraph (1) further specifics the principle of accountability in Article 5(2) GDPR, paragraph (2) specifies further requirements in the general principle of transparency under Article 5(1)(a) GDPR, paragraph (3) further determines the right to withdraw consent and paragraph (4) further specifies when consent is 'freely given'.

EDPB Guidelines: See also EDPB Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them which only apply to social media platforms but hold important general information.

(1) Obligation to provide proof of consent

Under Article 7(1) GDPR, the controller must be able to demonstrate that they have obtained data subjects’ valid consent, especially whether it was informed, freely given, unambiguous and specific. It is therefore a specific burden of proof.

Example: A data subject cannot remember that it gave consent. The controller says they used to have an online form that everyone had to sign, but the form cannot be found anymore. There is no digital trace of the consent. If 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 factual, written, electronic or oral declaration, data controllers are free to determine the specific mechanism to provide 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 a register may vary depending on the type of processing and the type of consent required. 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. For instance, the controller could send an email to the data subject requiring them to click on a confirmation button (double opt-in) to show that the person consenting is also the person having access to a mailbox. Once the user provides that confirmation, the associated token and the time may be stored in the consent register as evidence for the future.

Example: An implicit consent under Article 6(1)(b) GDPR to be in a group picture by assembling in a group may be documented by the picture itself and witnesses could confirm that the purpose of the processing was clearly communicated. However, online systems usually require some form of consent management, such as a filed in a database together with a cop of the the code and interface.

Article 7(4) GDPR relates to the principle of accountability in Article 5(2) GDPR and further specifies it for situations where a controller seeks consent.

(2) Consent request in the context of a written declaration concerning other matters

Article 7(2) applies when data subjects and controllers communicate in written form about “other matters”, such as a longer contract, sign-up form and alike. In such cases, the request for consent must 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 or overlooked. To do so, Article 7(2) GDPR sets out certain layout and transparency requirements.

Consent in the context of a written declaration concerning other matters

For the provision to apply, the communication between data subject and controller must meet two requirements: (i) it must occur in written form and (ii) it must concern other matters. Other situations, such as oral requests or stand-alone requests on forms that do not concern other matters do not have to comply with the specific provisions of Article 7(2) GDPR.

The "written form" requirement is to be interpreted broadly, which means that the electronic form is covered by this provision. The communication must concern “other matters”. For example, this is the case where complex legal documents deal with various types of processing and require different legal bases for each of them. If any of these processing activities rely on 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 put in place to ensure that the data subject is aware of the meaning of their actions. Article 7(2) GDPR 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 matters. In practice, this translates to a statement which clearly authorises 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, whether due to a low level of education or lack of language skills, should understand the text and positively express their consent. Thus, 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.

The legislator uses a very similar requirement for "concise, transparent, intelligible and easily accessible form, using clear and plain language" in Article 12(1) GDPR, which applies to Articles 13 to 22 and 34 GDPR. The requirements are a specification of the general principle of transparency in Article 5(1)(a) GDPR.

Failure to meet the requirements

If any part of the statement (provided by the controller to the data subject) does not meet these requirements or in any way "constitutes an infringement of this Regulation [it] shall not be binding". Such an infringement amounts to a clear violation of the lawfulness principle, (i.e. if the claimed legal basis is not present, see Articles 5(1)(a) and 6(1)(a) GDPR) and should bring about the immediate stop of processing of all personal data collected.

Example: A hotel has all guests sign a form upon arrival, informing them about a non-smoking policy, costs for the minibar, the opening hours of the gym and many other matters. In one of the paragraphs, the hotel seeks consent to use guests' registration data for advertisement, direct mailings and alike. This consent is not valid.

(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. This withdrawal should be as easy as giving consent, but will not retroactively affect any processing based on previously obtained consent. 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. This nonetheless poses certain technical challenges, such as the development of an appropriate revocation mechanism, 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). However, if the data subjects wanted to delete the data, it is likely they would have to submit a clear request for erasure under Article 17(1)(b) GDPR.

(4) Assessing the freely given requirement

Article 7(4) GDPR provides some useful guidance on the factors to be taken into account in assessing whether consent has been freely given or not. The provision focuses on the common practice of linking the performance of a service to the granting of consent for the processing of data which is not strictly necessary for the stated purpose (bundled consent). However, the EDPB noted that Article7(4) GDPR was 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 their consent without facing or at least perceiving the risk of detrimental effects on their employment. The EDPB also pointed 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 EDPB is the case set out in Article 7(4) GDPR 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 practices are considered highly undesirable because consent is presumed to not have been freely given in this situation (Recital 43).

Lack of granularity

Another critical profile identified by the EDPB 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 with one action (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 a reduction of service, is likely to generate a detrimental effect and thus invalidate consent.

EDPB Guidelines: on this provision there are EDPB Guidelines 05/2020 on consent under Regulation 2016/679

Decisions

→ You can find all related decisions in Category:Article 7 GDPR