The UK’s Information Commissioners Office (ICO — the data protection regulator) has published detailed guidance (PDF) on ‘consent’ within the General Data Protection Regulation. Since the UK is still in the European Union, the document provides a reasonable analysis of what is one of the trickiest aspects of GDPR. Once the UK leaves the EU, GDPR within the UK will be replaced by the new Data Protection Bill, which is designed to ensure the UK’s data protection adequacy. It is not guaranteed to succeed in this.
Consent is not the only legal basis for processing personal data under GDPR. Others are a contractual relationship; compliance with a separate legal obligation; a public task; vital interest (as in, to save a life); and legitimate interests. Some of these are nuanced and may require detailed legal advice before being relied upon — ‘legitimate interests’ does not mean that any commercial enterprise can ignore consent in the pursuit of profit.
Nevertheless, user consent is likely to be the primary legal justification for processing user data. Under GDPR, it is not very different to the existing requirement for consent under the European Data Protection Directive (DPD), but adds a few significant aspects. In particular, it requires that consent must be ‘unambiguous’ and involve ‘a clear affirmative action’.
The GDPR expansion of consent comes not in the definition but in the use and implications of consent. Three key areas are the need for keeping records of consent; the user’s right to withdraw consent; and the inability to make consent a condition of a contract. “In essence,” says the ICO, “there is a greater emphasis in the GDPR on individuals having clear distinct (‘granular’) choices upfront and ongoing control over their consent.”
Genuine and lawful consent becomes a double-edged sword. On the one hand, it gives the user greater control over the use of his or her data (for example, the ‘right to be forgotten’ and the right to data portability); while on the other hand, the ICO says that explicit consent “can legitimize automated decision-making, including profiling.”
However, it is the way the additional consent requirements play upon the definition of consent that can introduce confusion. An obvious example — which has always existed but is now brought into focus by the potential size of the new GDPR fines — involves ‘freely given’. Consent cannot be freely given if there is imbalance in the relationship between the individual and the controller. “This will make consent particularly difficult for public authorities and for employers, who should look for an alternative lawful basis where possible,” warns the ICO.
In general, public authorities should rely on the ‘public task’ justification rather than the consent justification. Employers who wish to process information on staff must be wary of any implication that continued employment might depend upon their consent to the processing — that consent cannot be freely given and any reliance by the employer on that consent would be illegal.
The right to be forgotten is another complication. The implication of the regulation is that if, for any reason, the user cannot withdraw consent, or the data cannot be deleted, then consent was never legally given. Under such circumstances, user consent is most likely the wrong justification. The ICO uses a credit card company as an example. The company might ask for the user’s consent to send details to a credit reference agency.
“However,” says the ICO, “if a customer refuses or withdraws their consent, the credit card company will still send the data to the credit reference agencies on the basis of ‘legitimate interests’. So, asking for consent is misleading and inappropriate — there is no real choice.” In this instance, the ‘legitimate interests’ justification should have been used from the outset — not user consent.
The inability to use consent as a contract condition is another nuanced area that could lead to confusion. “If you require someone to agree to processing as a condition of service,” says the ICO, “consent is unlikely to be the most appropriate lawful basis for the processing. In some circumstances it won’t even count as valid consent.”
The example given concerns a cafe that decides to offer its customers free wifi if they provide their name, email address and mobile phone number and then agree to the cafe’s terms and conditions. The T&Cs make it clear that the details will be used for direct marketing. “The cafe is therefore making consent to send direct marketing a condition of accessing the service. However, collecting their customer’s details for direct marketing purposes is not necessary for the provision of the wifi. This is not therefore valid consent.”
If the consent issue sounds complex and confusing, it is because it is complex and confusing. For example, probably every reader will have received emails from companies seeking to gain ‘re-consent’ to continue sending marketing or other emails before GDPR comes into effect. One example received here simply says, “To comply with the new EU General Data Protection Regulation (GDPR), we need to confirm that you want to keep receiving our marketing emails. Please confirm your subscription to [our firm’s] marketing communications by clicking the button below.” (Incidentally, beware of similar but false phishing emails.)
The reality is that such emails are either unnecessary or illegal. If the original consent was properly acquired in the first case, it will almost certainly remain valid. If consent was either not or inappropriately gathered in the first place, then this email is inadequate for GDPR’s requirements. At just one very simple and basic level, it doesn’t inform the reader of the right to withdraw consent; and is consequently not valid consent.
A case in point is the £13,000 fine levied by the ICO on Honda Motor Europe Ltd. The ICO announced in March 2017, “A separate ICO investigation into Honda Motor Europe Ltd revealed the car company had sent 289,790 emails aiming to clarify certain customers’ choices for receiving marketing.”
Honda believed it was doing so to abide by GDPR — but in fact it was breaching the consent requirements of a separate law (the Privacy and Electronic Communication Regulations — PECR), “The firm believed the emails were not classed as marketing but instead were customer service emails to help the company comply with data protection law. Honda couldn’t provide evidence that the customers had ever given consent to receive this type of email, which is a breach of PECR. The ICO fined it £13,000.”
At around the same time, the ICO fined the British Flybe airline £70,000 for sending more than 3.3 million emails to people who had told them they didn’t want to receive marketing emails from the firm. Steve Eckersley, ICO Head of Enforcement, said at the time, “Both companies sent emails asking for consent to future marketing. In doing so they broke the law. Sending emails to determine whether people want to receive marketing without the
right consent, is still marketing and it is against the law.”
These fines, had they been levied under GDPR after 25 May 2018, could have been considerably higher.
The document published by the ICO is long and complex, but full of links for further information and examples of valid and invalid use of user consent. Getting consent wrong could be costly — but getting it right is beneficial. “The GDPR sets a high standard for consent. Consent means offering people genuine choice and control over how you use their data,” says the ICO. “When consent is used properly, it helps you build trust and enhance your reputation.”
Related: GDPR – Not Just a European Concern