Article 7 GDPR

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Article 7: Conditions for consent
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


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[edit | edit source]

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[edit | edit source]

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.

(1) Obligation to Provide Proof of Consent[edit | edit source]

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. 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. For example, 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.[1]

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 to determine the specific mechanism to provide this evidence.[2] 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".[3]

The elements contained in such a register may vary depending on the complexity of the processing. For instance, since pre-ticked boxes have been declared not unambiguous and therefore unlawful,[4] 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). Once the user provides that confirmation, the associated token may be stored in the consent register as evidence for the future.[5]

(2) Consent Request in the Context of a Written Declaration concerning other Matters[edit | edit source]

Article 7(2) applies when data subjects and controllers communicate in written form about “other matters”. 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. To do so, Article 7(2) GDPR sets out certain layout and transparency requirements.

In the Context of a Written Declaration[edit | edit source]

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. The "written form" requirement is to be interpreted broadly, which means that the electronic form is covered by this provision.[6] 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[edit | edit source]

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".[7]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.[8] Thus, if the data subject is not able to grasp the meaning of their declaration, the controller must provide further clarification.[9] 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.[10]

Failure to Meet the Requirements[edit | edit source]

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 deletion of all the data collected.[11]

(3) Right to Withdraw Consent[edit | edit source]

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.[12] 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.[13] 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.[14]

(4) Assessing the Freely Given Requirement[edit | edit source]

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”.[15] These other elements are analysed below.

Imbalance of Power[edit | edit source]

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".[16]

Bundled Consent[edit | edit source]

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).[17]

Lack of Granularity[edit | edit source]

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".[18]

Detriment[edit | edit source]

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.[19]

Decisions[edit | edit source]

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

References[edit | edit source]

  1. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 68 (C.H. Beck, 2nd Edition 2018) who explains the dynamic in this way: "Da die Vorschrift zwar die Pflicht eines Nachweises aufstellt, allerdings an einen möglichen Verstoß keine unmittelbare Rechtsfolge anknüpft, stellt diese Regelung keine Bedingung dar, sondern ist vielmehr eine Risikoverteilungsregelung".
  2. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 71 (C.H. Beck, 2nd Edition 2018).
  3. Kosta, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 7 GDPR, p. 350 (Oxford University Press 2020).
  4. CJEU, C‑673/17, Planet49, 1 October 2019, margin number 58-60 (available here)
  5. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 71 (C.H. Beck, 2nd Edition 2018).
  6. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 77 (C.H. Beck, 2nd Edition 2018).
  7. Kosta, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 7 GDPR, p. 350 (Oxford University Press 2020).
  8. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 80 (C.H. Beck, 2nd Edition 2018).
  9. Stemmer, in Wolff, Brink, BeckOK Datenschutzrecht, Article 7 GDPR, margin number 63 (C.H. Beck 2020, 36th Edition).
  10. However, according to Kosta, the the reference to the UCTD in the recital is "problematic" because "[w]hether and under which conditions a contract is formed [...] is an issue of national law and the answers to these questions differ significantly between civil law and common law countries". See, Kosta, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 7 GDPR, p. 350 (Oxford University Press 2020).
  11. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 83 (C.H. Beck, 2nd Edition 2018).
  12. For example, if a consent is given through a cookie banner, it should be possible to withdraw it through the same banner or any of its features.
  13. In this sense Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 91 (C.H. Beck, 2nd edition 2018).
  14. Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 7 GDPR, margin number 92 (C.H. Beck, 2nd Edition 2018).
  15. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), pp. 7-8 (available here).
  16. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), pp. 8-9 (available here).
  17. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 10 (available here).
  18. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 12 (available here).
  19. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 13 (available here).