Guidelines 05/2020 on Consent under Regulation 2016/679 (GDPR)
Paragraph 3.3.2 How to provide information
66. The GDPR does not prescribe the form or shape in which information must be provided in order to fulfil the requirement of informed consent. This means valid information may be presented in various ways, such as written or oral statements, or audio or video messages. However, the GDPR puts several requirements for informed consent in place, predominantly in Article 7(2) and Recital 32. This leads to a higher standard for the clarity and accessibility of the information.
67. When seeking consent, controllers should ensure that they use clear and plain language in all cases. This means a message should be easily understandable for the average person and not only for lawyers. Controllers cannot use long privacy policies that are difficult to understand or statements full of legal jargon. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form. This requirement essentially means that information relevant for making informed decisions on whether or not to consent may not be hidden in general terms and conditions.
68. A controller must ensure that consent is provided on the basis of information that allows the data subjects to easily identify who the controller is and to understand what they are agreeing to. The controller must clearly describe the purpose for data processing for which consent is requested.
69. Other specific guidance on the accessibility has been provided in the WP29 guidelines on transparency. If consent is to be given by electronic means, the request must be clear and concise. Layered and granular information can be an appropriate way to deal with the two-fold obligation of being precise and complete on the one hand and understandable on the other hand.
70. A controller must assess what kind of audience it is that provides personal data to their organisation. For example, in case the targeted audience includes data subjects that are under age, the controller is expected to make sure information is understandable for minors. After identifying their audience, controllers must determine what information they should provide and, subsequently how they will present the information to data subjects.
71. Article 7(2) addresses pre-formulated written declarations of consent, which also concern other matters. When consent is requested as part of a (paper) contract, the request for consent should be clearly distinguishable from the other matters. If the paper contract includes many aspects that are unrelated to the question of consent to the use of personal data, the issue of consent should be dealt with in a way that clearly stands out, or in a separate document. Likewise, if consent is requested by electronic means, the consent request has to be separate and distinct, it cannot simply be a paragraph within terms and conditions, pursuant to Recital 32. To accommodate for small screens or situations with restricted room for information, a layered way of presenting information can be considered, where appropriate, to avoid excessive disturbance of user experience or product design.
72. A controller that relies on consent of the data subject must also deal with the separate information duties laid down in Articles 13 and 14 in order to be compliant with the GDPR. In practice, compliance with the information duties and compliance with the requirement of informed consent may lead to an integrated approach in many cases. However, this section is written in the understanding that valid “informed” consent can exist, even when not all elements of Articles 13 and/or 14 are mentioned in the process of obtaining consent (these points should of course be mentioned in other places, such as the privacy notice of a company). WP29 has issued separate guidelines on the requirement of transparency.
73. Example 12: Company X is a controller that received complaints that it is unclear to data subjects for what purposes of data use they are asked to consent to. The company sees the need to verify whether its information in the consent request is understandable for data subjects. X organises voluntary testpanels of specific categories of its customers and presents new updates of its consent information to these test audiences before communicating it externally. The selection of the panel respects the principle of independence and is made on the basis of standards ensuring a representative, non-biased outcome. The panel receives a questionnaire and indicates what they understood of the informationand how they would score it in terms of understandable and relevant information. The controller continues testing until the panels indicate that the information is understandable. X draws up a report of the test and keeps this available for future reference. This example shows a possible way for X to demonstrate that data subjects were receiving clear information before consenting to personal data processing by X.
74. Example 13: A company engages in data processing on the basis of consent. The company uses a layered privacy notice that includes a consent request. The company discloses all basic details of the controller and the data processing activities envisaged. However, the company does not indicate how their data protection officer can be contacted in the first information layer of the notice. For the purposes of having a valid lawful basis as meant in Article 6, this controller obtained valid “informed” consent, even when the contact details of the data protection officer have not been communicated to the data subject (in the first information layer), pursuant to Article 13 (1)(b) or 14 (1)(b) GDPR.