What GDPR Means for Consent

Thus far in our Insights series on GDPR, we’ve outlined the basic history and goals of the regulation as well as explained what the new law means for businesses who work with third-party vendors. In this third and final article of the series, we’ll address critical guidance related to how companies obtain consent from individuals as well as how consent applies to a business’ website cookies.

Consent Under GDPR

Consent is an incredibly important component of the new GDPR law. Extending beyond the confines of its predecessor, the EU Privacy Directive, GDPR requires that businesses acquire consent that is “freely given, specific, informed and unambiguous”. In other words, while previous data protection regulations permitted companies to implement “opt-out” procedures for data collection, under GDPR, businesses need to convert to an “opt-in” method, which requires that individuals provide “a statement or a clear affirmative action” indicating their consent with sharing their personal data.

Businesses must also provide individuals with the ability to withdraw consent at any time. Even after previously providing consent, there must be a mechanism in place to allow individuals to alter their choice and remove their data from a company’s records or databases. The means for opting-out or unsubscribing should be well-defined for users; that includes ensuring any and all marketing emails contain an “unsubscribe” link.

For certain personal criteria, GDPR requires “explicit” consent. This criteria includes race or ethnicity, political affiliations or opinions, religion, sexual orientation, genetic and biometric data and trade-union membership.

Consent and Website Cookies

Adding another layer of depth to GDPR’s consent standards are the compliance obligations related to website cookies. Essentially, GDPR stipulates that if a cookie can identify an individual– which is most often the case since cookies generally track a user’s IP address – then it is considered personal data and must be protected under GDPR.

As with the aforementioned consent guidelines, businesses need to ensure consent related to cookies meets the same standards, including requiring opt-in and opt-out capabilities and explaining specifically how the user’s personal data will be processed. Because cookies can be used for a variety of purposes – analytics, targeted advertising, authentication, or storing user preferences – explanations are necessary to properly inform users about how the personal data obtained through cookies be used.

Quick Consent Tips

To be clear, regarding consent, businesses should be sure to:

  • Transition from an “opt-out” to “opt-in” method;
  • Update Privacy Policies to reflect GDPR requirements, including outlining how individuals’ personal data is processed and/or maintained; and
  • Ensure users who visit your website have the ability to withdraw consent at any time.

For more information on meeting GDPR obligations, please connect with us.

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Michelle Mackey
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