Consent under the data protection regime

Introduction

Consent is a form of expressed and immediate acceptance of the terms by the user. Consent provides validity and is binding under certain legal regimes. Data protection laws like the GDPR, CCPA, LGPD, PIPEDA etc recognises consent as a legal basis for processing personal data. It is a highly used best practice by organisations to obtain “informed consent” from the individuals i.e. data subject on each data collection points.

Forms of Consent

For smoother experience of user on website consents are now enabled by way of check boxes mentioning options to select and explaining the purposes of the data to be collected, stored and shared. This requires an affirmative action by user to treat the consent as accepted.

Another form was the Click-Wrap Contract i.e. an option is provided at the end of the terms statements for the user to click on Accept or Decline button as a mark of acceptance or rejection of the terms.   

General Data Protection Regulation (GDPR)

Consent is defined under the GDPR as:

“Any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”.

Let’s break this down into five elements:

  • Freely given – the person must not be pressured into giving consent or suffer any detriment if they refuse.
  • Specific – the person must be asked to consent to individual types of data processing.
  • Informed – the person must be told what they’re consenting to.
  • Unambiguous – language must be clear and simple.
  • Clear affirmative action – the person must expressly consent by doing or saying something.

If any one of these five elements are missing, it won’t be considered as a valid consent under GDPR.

Under the GDPR, consent is not required –

  • For carrying out a core service (use contract instead).
  • For required to process personal data by law (legal obligation).
  • For processing personal data to the benefit of your company or others in a way that your users would reasonably expect, with minimal risk and impact on individuals (legitimate interests).

California Consumer Privacy Act (CCPA)

Consent is defined under the CCPA as:

“Any freely given, specific, informed, and unambiguous indication of the consumer’s wishes by which the consumer, or the consumer’s legal guardian, a person who has power of attorney, or a person acting as a conservator for the consumer, including by a statement or by a clear affirmative action, signifies agreement to the processing of personal information relating to the consumer for a narrowly defined particular purpose.”

The CCPA doesn’t require active, advance consent. You can collect and use the data right away without any confirmation from the person. The only time when consent is required under CCPA is when you’re selling the data.

You could be “selling” personal data if, for example, you share data with third parties to produce personalized ad campaigns. For businesses, then, this means that there’s a good chance you could be selling data within the meaning of the CCPA.

In short, if there’s any chance, you’re selling someone’s data within the Act’s meaning, it’s best to proceed as if you are, which means following the CCPA’s “opt out” rules.

Indian Data Protection Bill (“DP Bill”)

The DP Bill provides the following grounds for consent to be considered valid:

  1. free, having regard to whether it complies with the standard specified under section 14 of the Indian Contract Act, 1872;
  2. informed, having regard to whether the data principal has been provided with the notice for collection or processing of personal data;
  3. specific, having regard to whether the data principal can determine the scope of consent in respect of the purpose of the processing;
  4. clear, having regard to whether it is indicated through an affirmative action that is meaningful in a given context; and
  5. capable of being withdrawn, having regard to whether the ease of such withdrawal is comparable to the ease with which consent may be given.

The newly proposed DP Bill, 2021 brings in a clear and robust consent mechanism for the collection of sensitive personal data (“SPD”) and its processing specifically but personal data (“PD”) also in general. Accordingly, two major changes have been made to the draft legislation. First, with respect to SPD, the language as expressed in the consent clause has been amended to require that the explicit consent of the data principal is to be obtained by specifying in clear terms not just the purpose but also the conduct and context explicitly, without circumvention of any law and without any kind of implicit inferences. Second, in relation to PD, the services, quality of service, performance of a contract or enjoyment of any legal right or claim cannot be denied by the data fiduciary based on the exercise of choice by the data principal.

To learn more about implementing consent mechanisms in your organization, head over to our Data Privacy Services page to learn more about our services.

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