On 13 July 2011, the Article 29 Working Party (the "Working Party"), the independent European advisory body on data protection and privacy, adopted an opinion on the definition of consent (WP 187) (the "Opinion"). The Opinion explains the notion of consent on the basis of a detailed analysis of the key elements of the definition of consent in EU Directive 95/46/EC (the "Data Protection Directive") and also briefly discusses how consent is used under EU Directive 2002/58/EC (the "ePrivacy Directive"). In addition, the Opinion contains a number of recommendations for the ongoing review of the Data Protection Directive.
The Opinion notes that there are different approaches and divergent views of good practice in different Member States and wishes to clarify matters to ensure a common understanding of the existing legal framework.
The Opinion recognises that there is an overlap between the notion of consent under the Data Protection Directive and the interpretation of consent in other fields of law, particularly contract law. Accordingly, national civil law requirements may also be relevant when assessing the validity of consent under the Data Protection Directive.
Consent constitutes one of the possible legal grounds for the lawful processing of personal data under the Data Protection Directive (Articles 7(a) and 8.2 (a) of the Data Protection Directive). Consent is not always the primary or the most desirable legal basis and in some cases may even be a weak basis. The Opinion therefore stresses that the use of consent in the right context is crucial. Moreover, the Opinion underlines that when a data controller relies on consent as a ground for processing data, this does not exempt the data controller from its other obligations under the Data Protection Directive.
Definition of consent
The Opinion explains the notion of consent on the basis of an analysis of its four key elements. Consent is defined in Article 2 lit. (h) of the Data Protection Directive as follows: "the data subject's consent shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed".
The first element is "any [...] indication of his wishes [...] signifying [...]". According to the Opinion, this implies a need for action. In other words, passive behaviour or simple inaction is insufficient.
Moreover, consent must be "freely given". The data subject must have a real choice. There should not be any risk of deception, intimidation, coercion or significant negative consequences. Nevertheless, a moderate incentive for the data subject to consent, such as a small reduction in a fee, is permitted. The Working Party recalls that in an employment relationship employees can be in a situation of dependence on the data controller and it would need to be checked carefully whether consent was "freely given". In most cases, the processing of employee personal data by the employer can be based on one of the other legal grounds for data processing.
In addition, consent must be "specific". The Opinion considers as unacceptable a blanket consent if the exact purpose of the processing was not specified. The consent must be intelligible, refer clearly and precisely to the scope and consequences of the data processing and must be given in relation to the different aspects of the processing, i.e., which personal data are processed and for which purposes. The Working Party recognises that it should be sufficient for data controllers to obtain consent only once for different operations that fall within the reasonable expectations of the data subject.
The last element is "informed". In other words, consent must be based on an appreciation and understanding of the facts and implications of an action. This implies that the data subject is given accurate and full information of all relevant issues, including those specified in Articles 10 and 11 of the Data Protection Directive. In this respect, the Working Party stresses the importance of the quality of the information provided, which a regular/average user should be able to understand, as well as the accessibility and visibility of the information. It is considered to be a matter of good practice to review individuals' choices regularly, informing them of their current choices and offering them the possibility to confirm or withdraw consent.
Special categories of data
Consent is also a legal ground on the basis of which special categories of personal data may be processed (Article 8(2) lit. (a) of the Data Protection Directive). However, for these categories the consent must be "explicit". This is understood as having the same meaning as express consent and encompasses all situations where individuals are presented with a proposal to agree or disagree to a particular use or disclosure of their personal information and they respond actively to the question, in writing or orally. In practice, data controllers are advised to resort to written consent for evidentiary reasons. According to the Working Party, consent that is inferred will not normally meet the requirement of Article 8(2) lit. (a) of the Data Protection Directive.
Transfer to non-adequate third countries
Personal data may be transferred to non-adequate third countries (Article 26(1) lit. (a) of the Data Protection Directive), if the data subject has given his "unambiguous consent" to the proposed transfer. Hence, the requirements are identical to those under Article 7 lit. (a) of the Data Protection Directive (consent as a ground for the lawful processing of (non-sensitive) personal data). Unambiguous consent is more likely to be obtained if individuals resort to a form of affirmative action to signify their agreement to the transfer.
ePrivacy Directive
The definition of consent of Directive 95/46/EC also applies to the ePrivacy Directive. The criteria to determine valid consent are therefore the same.
Under the ePrivacy Directive, the confidentiality of communications is protected by prohibiting any kind of interception or surveillance of communications without the consent of all users concerned. The Working Party indicates that this means that consent of the two parties to a communication is required.
There are also various provisions in the ePrivacy Directive which contain language indicating that consent is to be provided prior to the processing (Articles 6(3), 9 and 13 of the ePrivacy Directive). With respect to Article 5(3), which contains a specific rule regarding the storing of information or gaining of access to information on a user's terminal (the so-called cookie clause) (See, Van Bael & Bellis on Belgian Business Law, Volume 2009, No. 12, p. 8), the Working Party takes the view that the requirement that consent must be provided prior to the processing clearly follows from the wording of the provision.
The need for consent should also be distinguished from the right to object ex Article 13 of the ePrivacy Directive and the Working Party reiterates its view that consent based on the lack of individuals' actions, for example, through pre-ticked boxes or browser settings which would accept by default the targeting of the user do not meet the requirements of valid consent.
Recommendations of Working Party
The Working Party concludes that the current legal framework on consent constitutes a "well thought out set of rules". Nevertheless, the Opinion suggests a number of changes. For instance, the Working Party recommends incorporating the requirement of "unambiguous" consent into the standard definition of consent and clarifying and harmonising this concept throughout the EU. In addition, the Working Party recommends that data controllers be required to put in place mechanisms to demonstrate consent. Moreover, an express clause setting up the right of individuals to withdraw their consent and an explicit requirement regarding the quality and accessibility of the information forming the basis for consent should be added and the notion that consent must be given before the processing starts should be reinforced. Finally, the Opinion recommends enhancing the protection of individuals lacking legal capacity (for instance, requiring consent from parents or including an age threshold).
The Opinion can be found at: http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2011/wp187_en.pdf.
