GDPR - Confused about consent

People, and indeed other legal advisors, still seem a bit confused about consent, so here are some bullet points to put right some of the myths out there.

Consent is only 1 of the 6 lawful basis for processing data. You do not always need consent, in fact you are probably better off using another lawful ground.

Consent is not necessarily required to send marketing materials to your existing clients. If you have been using an ‘opt out’ method, you can continue to do this under GDPR. Your GDPR lawful basis, to send out MOT reminders for example, would be ‘legitimate interest’ and this is perfectly fine as long as you continue to provide a clear way to opt out in accordance with Regulation 22 of the Privacy & Electronic Communications Regulations (PECR).

You should remove data consent clauses from employment contracts as otherwise an employee could withdraw that consent and that makes things tricky. Use legitimate interest, performance of a contract and/or data required for the performance of a legal obligation as your legal basis.

If you do use consent:

  • There must be a positive opt in, so no pre-ticked boxes or any other method of default. 

  • The language must be clear, so the consumer or employee must know exactly to what they are consenting and what you will be doing with their data.

  • It has to be granular. Therefore if you want to market by SMS, email and telephone, you need separate consent boxes for each. A blanket or vague consent statement will not meet GDPR standards so ‘we will share your data with relevant third parties’ is not good enough – you need to name the third parties. 

  • You have to advise people they have the right to withdraw that consent.

  • You must ensure consent information is not hidden within other T&Cs, it has to be transparent and clear. 

  • You must review consent and refresh as appropriate, dependent on it's context.

Remember, personal data belongs to the individual. They may effectively lease it to you but ultimately it belongs to them and so you need to keep it safe and let them know exactly what you will be doing with it so they remain in control.  However, you do not have to rely on consent to lease that data.

For advice and assistance with GDPR and compliance with the regulations Lawgistics Members can contact the legal team.


Authors: Nona Bowkis

Published: 19 Apr 2018


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