If you’re searching for love, consent is critical. But when it comes to data protection, consent can be more like a complex dance that’s anything but alluring. Navigating the intricate steps of ‘Consent in Data Protection Law’ can make even the most seasoned data protection officers feel like they’re stepping on their partner’s toes. Grab your dancing shoes, and let us guide you through the rhythm and rules of consent under relevant data protection laws so you can waltz confidently into compliance.

The concept of consent and its relationship to other legal grounds

Consent in data protection law refers to an individual’s voluntary and informed agreement for an organisation to collect, process, and share their personal data. Consent is just one of several legal bases for processing personal data, including contractual obligations, legal requirements and legitimate interests (subject to an impact assessment).

Legal requirements and obligations for obtaining and managing consent

Under relevant data protection laws, organisations must meet specific requirements to receive and manage consent from individuals. These requirements include:

  • Being transparent and informing individuals about the purpose, scope, and duration of data processing and any third parties involved.
  • Communicate clearly by using concise language and avoiding legalese and jargon.
  • Achieving specificity by ensuring that your organisation gets consent explicitly for each processing purpose and does not try to bundle it with other unrelated transactions.
  • Making sure that consent is valid and informed by obtaining it freely, without coercion, deception, or undue pressure, and ensuring that individuals fully understand the implications of their consent.

Practical advice on obtaining and managing consent

To effectively acquire and manage consent, organisations should:

  • Provide individuals with accessible, easy-to-understand consent forms and privacy notices.
  • Implement consent management systems to track, update, and manage consent, allowing individuals to withdraw or modify their consent at any time.
  • Ensure that consent materials are accessible to individuals with disabilities, following relevant accessibility guidelines.

Limitations and risks of obtaining and managing consent

Organisations should be aware of potential limitations and risks when relying on consent as a legal basis for data processing:

  • Individuals can withdraw their consent anytime, and organisations must be able to cease processing their data accordingly. Don’t ask for it if you can’t give it back.
  • Organisations must continuously monitor and update their consent practices to ensure ongoing compliance with data protection regulations, constantly evolving as relevant supervisory authorities worldwide make decisions and provide guidance.

Common misconceptions and mistakes in consent management

Some common mistakes organisations make when obtaining or managing consent include:

  • Assuming consent is always necessary because consent is not always the most appropriate legal basis for data processing. Other grounds, such as legal requirements or contractual obligations, may be more suitable in certain circumstances.
  • Using consent as a substitute for activity mapping because getting consent for everything cannot replace properly defining your organisation’s grounds for processing personal data by creating a comprehensive record of processing activities (ROPA).

Inappropriate situations for consent

Consent may not be appropriate as a legal ground for data processing in certain situations, such as:

  • In employee-employer relationships because the imbalance of power may render consent invalid, as employees may feel pressured to provide consent and cannot meaningfully withhold it. You should usually look for a contractual or legal reason to justify your processing instead.
  • When sharing personal data with a third party is required by law, such as with tax authorities or the police, consent may not be the most appropriate legal basis.

Actions you can take next

By understanding and applying the principles of consent in data protection law, your organisation can build trust with customers and employees while maintaining compliance with relevant regulations.