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I have seen many ways of requiring user acceptance of their data usage on the internet. Which conform to GDPR? Keep in mind I am talking just about the consent acquiring mechanism.

In order from the least options offered to the user to the most options offered:

  • not allowing to use the site until the user clicks Accept. No options, just an "Accept" button.

  • A banner stating that "By browsing the site you accept the conditions". Just an "x" to close the banner. Using the site is allowed while the banner is displayed.

  • A banner with an "Accept" (and possibly "Reject") button. No other options. Site navigation is allowed while the banner is displaying.

  • A banner with an "Accept", "Reject" and also a "Settings" options where the user can fine tune the way his data is being used by the site.

I have heard from developers who have studied the GDPR that the law requires options for fine tuning settings (something like data required for basic functionality, data required for site analytics, data required for personalized ads, etc.). Which if true would make only the last variant above compliant. However I have personally observed only a handful of sites implementing this. Are all others non-conforming?

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  • I agree with you, but we probably have to wait until the first fines are issued for non-conforming websites.
    – wimh
    Aug 3 '18 at 23:12
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Overview

As described, only the last of these seems to be compliant ways of obtaining consent, and indeed even that is not fully compliant, although features not described might make it so.

However, if there is a lawful basis for processing PI other than consent, under GDPR article 6, then there is no need to obtain consent at all, and doing so in an improper way is irrelevant. However storage of or access to local information (such as cookies) requires consent unless such storage or access is "strictly necessary" for providing a service which the user has requested.

Relevant GDPR Provisions

GDPR article 6 lists six possible lawful bases for processing personal data. These are, in summery:

  • (a) consent;
  • (b) processing is necessary for the performance of a contract or to takwe steps requested by the Data Subject;
  • (c) necessary for compliance with a legal obligation;
  • (d) to protect the vital interests of the data subject or another person
  • (e) or the performance of a task carried out in the public interest
  • (f) legitimate interests of the Controller

The other provisions cited here apply only to PI for which the lawful basis is consent.

GDPR article 7 reads:

(2) If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding.

(3) The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.

When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.

GDPR Recital 32 reads:

Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.

GDPR Recital 42 reads:

... in particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.

GDPR Recital 43 reads:

... Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

Analysis

I will review each of the scenarios in the question in turn.

Scenario 1:

not allowing [a user] to use the site until the user clicks Accept. No options, just an "Accept" button.

This does not constitute freely given consent, because:

  • The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)).
  • There appears to be no way to withdraw consent (Art 7(3)).
  • It appears that the provision of a service (use of the site) is conditional on consent not needed for that service (Art 7(3)).
  • Consent is not informed and unambiguous (Recital 32).
  • The use has not been informed of the extent to which consent is given (Recital 42).
  • The subject has not been made aware of purposes of the processing (Recital 42).
  • the data subject has no genuine or free choice (Recital 42).
  • There is no provision for separate consent to be given to different personal data processing operations. (Recital 43).

Scenario 2:

A banner stating that "By browsing the site you accept the conditions". Just an "x" to close the banner. Using the site is allowed while the banner is displayed.

This does not constitute freely given consent, because:

  • Consent was not "given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data" (Art 7(2)).
  • The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)).
  • There appears to be no way to withdraw consent (Art 7(3)).
  • Consent is not informed and unambiguous (Recital 32).
  • The use has not been informed of the extent to which consent is given (Recital 42).
  • The subject has not been made aware of purposes of the processing (Recital 42).
  • the data subject has no genuine or free choice (Recital 42).
  • There is no provision for separate consent to be given to different personal data processing operations. (Recital 43).

Scenario 3:

A banner with an "Accept" (and possibly "Reject") button. No other options. Site navigation is allowed while the banner is displaying.

This does not constitute freely given consent, because:

  • The giving of consent is not "clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language" (Art 7(2)).
  • There appears to be no way to withdraw consent (Art 7(3)).
  • Consent is not informed and unambiguous (Recital 32).
  • The use has not been informed of the extent to which consent is given (Recital 42).
  • The subject has not been made aware of purposes of the processing (Recital 42).
  • There is no provision for separate consent to be given to different personal data processing operations. (Recital 43).

Scenario 4:

A banner with an "Accept", "Reject" and also a "Settings" options where the user can fine tune the way his data is being used by the site.

This might constitute freely given consent, provided that:

  • a document is displayed or linked to that describes the kinds of PI that will be processed, and the purposes of the processing;
  • There is some easy and obvious manner to withdraw consent, and to change the individual choices on what to consent to, after the banner has closed, or on any subsequent visit to the site;
  • The consent section of the settings dialog must be clearly distinguished from other sections that do not deal with consent;

Just where the lines must be drawn between "different personal data processing operations" which each requires the possibility of separate consent is not yet fully clear.

And again, if the site or service does not store or otherwise process PI, or has a lawful basis for doing so other than consent, and does not store or access local information, it need not obtain consent at all, and the question of what constitutes freely given consent becomes irrelevant. Of course many sites do depend on consent as the lawful basis for much of their activity.

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