The General Data Protection Regulation (GDPR) introduced stringent requirements for obtaining valid consent for the processing of personal data. Obtaining valid consent is critical for organizations that collect and process personal data, as failure to meet GDPR requirements can result in significant penalties & reputational damage. In this blog, we will explore the challenges & best practices associated with obtaining GDPR-compliant consent, and provide tips for organizations to ensure that they obtain valid, informed, & freely given consent from individuals.
- 1 What Is Consent In GDPR?
- 2 What Are The Requirements For GDPR Consent?
- 3 What If The GDPR Consent Requirements Are Not Met?
- 4 Challenges In Obtaining GDPR Consent Requirements
- 5 Tips For Organizations To Meet Consent Requirements
- 6 Conclusion
What Is Consent In GDPR?
GDPR consent refers to the legal basis for processing personal data under the General Data Protection Regulation (GDPR). It requires that individuals provide explicit, informed, & freely given consent for their personal data to be collected, processed, and/or shared. GDPR consent must be obtained before data processing activities begin, & individuals must be informed of their right to withdraw consent at any time.
What Are The Requirements For GDPR Consent?
The GDPR sets out several requirements for valid consent, which include:
Consent must be given freely, without coercion or pressure. This means that individuals must have a real choice & be able to refuse or withdraw their consent without suffering any negative consequences. For example, organizations cannot make consent a condition of using their services unless consent is necessary for the service to be provided.
Consent must be specific to the purposes for which the data will be used. This means that organizations must be clear about what they are asking for consent to do with the data, & individuals must be able to understand the scope of the processing. If an organization wants to use the data for a different purpose than was originally agreed upon, it must obtain separate consent for that new purpose.
Individuals must be fully informed about the processing of their data before they give their consent. This means that organizations must provide clear & understandable information about who is processing the data. They must be aware of their data collection, utilization, process, & retention. Organizations must also provide individuals with information about their rights under the GDPR.
Consent must be given through a clear affirmative action. This means that organizations cannot rely on pre-ticked boxes or assumed consent. Instead, individuals must take clear action to indicate their consent, such as checking a box or clicking a button. Silence or inactivity cannot be considered as consent.
Individuals have the right to withdraw their consent at any time. This means that organizations must provide individuals with an easy & accessible way to withdraw their consent, such as an unsubscribe link or an opt-out mechanism. Once an individual withdraws their consent, the organization must stop processing their data.
Where data is being collected from children, consent must be given by a parent or guardian. The GDPR sets the age of consent at 16, but individual EU member states can choose to lower it to 13. Organizations must verify the age of the individual and obtain the appropriate level of consent. They must also use language & information that is appropriate for the age group of the individual.
What If The GDPR Consent Requirements Are Not Met?
If the requirements for GDPR consent are not met, then the processing of personal data is considered unlawful. This means that the data controller (the organization responsible for processing the data) may be subject to penalties & fines from data protection authorities.
In particular, the GDPR empowers data protection authorities to impose fines of up to 4% of a company’s global annual revenue or €20 million (whichever is greater) for serious breaches of the GDPR, including those related to consent. Fines can be issued on top of other sanctions such as corrective orders, suspensions of processing, & data breaches.
In addition to the risk of fines and sanctions, failing to meet GDPR consent requirements can damage an organization’s reputation & erode consumer trust. Data subjects also have the right to bring legal action against organizations for breaching their GDPR rights, which can lead to costly lawsuits & reputational damage.
Therefore, it is important for organizations to take GDPR consent requirements seriously & ensure that they are obtaining valid, informed, and freely given consent for the processing of personal data.
Challenges In Obtaining GDPR Consent Requirements
Obtaining GDPR consent can be challenging for organizations, particularly in the context of digital marketing & online services. Here are some of the main challenges that organizations may face when trying to obtain GDPR-compliant consent:
- Consent fatigue: Individuals are often bombarded with consent requests from multiple sources. This can lead to consent fatigue & make it harder to obtain meaningful, informed consent.
- Complex data processing activities: Some data processing activities may be complex or difficult to explain. This makes it challenging to obtain clear & specific consent.
- Lack of trust: Many individuals are skeptical about how their personal data is used. This can make it difficult to obtain their trust & obtain valid consent.
- Language barriers: Some individuals may not be fluent in the language used in consent forms or may have limited literacy skills. This can make it difficult for them to understand the information provided.
- Imbalance of power: In some cases, the data controller may have a stronger bargaining position than the individual. This makes it harder to obtain freely given consent.
- Technical limitations: Some technical limitations, such as limited screen real estate on mobile devices or the use of pop-up blockers, can make it challenging to obtain consent in a user-friendly & accessible manner.
- Changes in data processing activities: Changes in data processing activities may require obtaining new consent. This can be challenging if the individual has already provided consent & may be difficult to re-engage.
Tips For Organizations To Meet Consent Requirements
Here are some tips for organizations to meet GDPR consent requirements:
- Be transparent: Provide individuals with clear, specific, and easy-to-understand information about how their data will be used. Use plain language & avoid legal jargon. Make sure the information is easy to find & accessible. Obtain consent through clear, affirmative actions, such as a tick box or button. Avoid pre-ticked boxes or assumptions of consent.
- Make it easy to withdraw consent: Provide individuals with a simple way to withdraw their consent. Such as an unsubscribe link or opt-out mechanism. Ensure the process is easy & accessible.
- Keep records: Keep records of all consent obtained. This may include who gave consent, when and how it was obtained, & what individuals were told at the time of consent.
- Provide granular options: Provide granular options for consent, where possible. This means giving individuals the ability to choose which types of data processing they consent to. Moreover, it also involves allowing them to provide consent for some processing activities but not others.
- Verify age: Verify the age of individuals & obtain the appropriate level of consent for minors. Use language and information that is appropriate for the age group of the individual.
- Use Technology: GDPR compliance software can also be leveraged by organizations to enhance the consent process. These software solutions can help automate consent management & ensure ongoing compliance with GDPR requirements. Furthermore, this can provide individuals with greater control over their personal data.
In conclusion, obtaining valid, informed, & freely given consent is an essential aspect of GDPR compliance. Failure to meet GDPR consent requirements can result in significant penalties, fines, and reputational damage for organizations. To ensure compliance, organizations should take a user-centric approach to obtain consent, providing clear and easy-to-understand information & user-friendly consent mechanisms. If you need further help in understanding and meeting GDPR consent requirements, seek help from legal or data protection experts.
If you are looking to implement any of the Infosec compliance frameworks such as SOC 2 compliance, HIPAA, ISO 27001, and GDPR compliance, Impanix can help. Book a Free consultation call with our experts or email us at [email protected] for inquiries.