Table of Contents
In Short
- Consent under the UK GDPR must be freely given, specific, informed, and involve a clear affirmative action.
- Relying on consent as a lawful basis for data processing can be challenging due to its high standards and the possibility of withdrawal at any time.
- Legal advice helps ensure your consent processes are compliant and well-managed.
Tips for Businesses
Ensure any consent you collect for data processing meets UK GDPR requirements: it must be informed, specific, and unambiguous. Regularly review and update your consent management systems to track and manage consent efficiently. Consider seeking legal advice to ensure your consent processes are fully compliant and to avoid penalties.
Consent is a commonly used term in data protection, especially under the UK General Data Protection Regulation (UK GDPR) rules. While this term is often mentioned, it is vital to understand what it means. Understanding consent and how to obtain it properly is essential for businesses and organisations handling personal data to comply. In practice, it can be difficult for a company to rely on consent as a lawful ground to process personal data. This article explores the UK data protection law regime, the meaning of the lawful basis for processing personal data, and critical considerations around consent.
What is the UK Data Protection Law Regime?
The UK’s data protection law framework consists of crucial laws. These include the UK GDPR and the Data Protection Act 2018 (DPA 2018). These legal regimes set out rules on how businesses must handle personal data in the UK. The UK GDPR, adapted from the EU GDPR following Brexit, is the primary data protection regulation. The DPA 2018 supplements this framework by addressing UK-specific issues, such as law enforcement and intelligence services, and providing additional rules.
The UK GDPR applies to any organisation processing the personal data of individuals residing in the UK, regardless of where the organisation is based. It sets out rules for collecting, using, and storing personal data and grants individuals rights over their data. The DPA 2018 addresses particular areas and details where the UK GDPR leaves gaps, especially concerning national security and law enforcement.
What is a Lawful Basis for Processing Personal Data?
You cannot just use an individual’s personal information simply because you want to. You must comply with strict data protection law rules when doing so at all times. Under the UK GDPR, you can only process personal data if you base the processing on one of six lawful bases. These are the justifications for collecting and using personal data. Every data processing activity must fall under one of these bases:
- consent: This means the individual has explicit permission for their data to be used for a specific purpose;
- contractual necessity: Here, processing is necessary to fulfil a contract with the individual or to take steps upon their request before entering into a contract;
- legal obligation: Here, processing is necessary to comply with the law;
- vital interests: Here, processing is necessary to protect someone’s life;
- public task: Here, processing is necessary to perform an official or public interest task; and
- legitimate interests: In this case, processing is necessary for your organisation’s legitimate interests, provided these interests do not override the individual’s rights and freedoms.
As a controller, you must be able to justify which lawful basis you rely upon to process personal data. While consent is one lawful basis, it can be challenging to manage due to the high standards required for it to be valid under the UK GDPR.
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What Does Consent Mean?
Under the UK GDPR, consent means that an individual (for example, your customer, employee or candidate) has explicitly agreed to allow your business to use their data for a specific purpose. For consent to be valid, it must meet the following criteria:
- freely given: the individual must have a genuine choice and should not feel pressured or face negative consequences if they choose not to consent;
- specific: consent must relate to a clear and defined purpose. The individual must know exactly what they are agreeing to;
- informed: the individual must understand what they consent to, including who is collecting their data, why it is being collected, and how it will be used; and
- unambiguous: consent must involve a clear affirmative action, such as ticking a box or signing a form. This should indicate that the individual actively agrees to the data processing.
What Does This Mean for Your Business?
These standards set the bar for consent very high. However, ensuring that you can show that any consent you rely upon is up to the relevant standard is vital.
You must keep detailed records when relying on consent on a lawful basis. For instance, carefully document what the individual has agreed to, when they gave their consent, and how you obtained it. This record-keeping is crucial for demonstrating compliance in case of an investigation or complaint by the UK data protection regulator.
Why Can Consent Be Challenging?
You should approach the topic of consent with caution. Managing consent on a lawful basis presents challenges because the UK GDPR sets a very high standard for obtaining consent. To ensure valid consent, you must ensure that it is informed, specific, and freely given. This can be challenging to achieve in practice.
One challenge involves ensuring that individuals fully understand what they consent to. This is especially relevant in complex data processing activities where explaining the processing is not easy. Additionally, consent must be specific, meaning you cannot use one blanket consent for multiple purposes.
Another challenge is that consent is not static. Individuals have the right to withdraw their consent at any time. When they do, you must immediately stop processing their data for the purposes covered by that consent. Therefore, you need systems to track and manage consent throughout its lifecycle.
In the employment context, it can be challenging to rely on consent. This is because it is dubious whether employees have a genuine choice over giving their consent. This is because there might be an imbalance of power between staff and their employers.
Given these challenges, you must exercise caution to ensure that your consent processes are robust and fully compliant with the UK GDPR, where your business relies on consent as a lawful basis to process personal data.
How Legal Advice Can Help Your Business?
It may be tricky to understand under which circumstances you might seek to rely on consent and how you obtain it up to the high UK GDPR standard.
Legal advice from a data protection lawyer can be crucial. Legal guidance can ensure that your consent processes meet the strict requirements of the UK GDPR.
A data protection lawyer can assist your business in several ways, for example:
- help you determine if consent is the appropriate legal basis for your data processing activities or if another lawful basis might be more suitable. In practice, consent may not be commonly relied upon by a business unless no other legal grounds apply – a lawyer can guide you through this;
- draft UK GDPR-compliant consent forms that are compliant and meet all legal requirements, ensuring that individuals know precisely what they agree to;
- help you establish systems for managing consent, allowing you to track who has given consent, what they have agreed to, and how to handle consent withdrawals; and
- train your staff on obtaining and managing consent properly, ensuring everyone in your organisation understands their responsibilities when collecting consent.
With legal support, you will be in a better position to navigate the challenges of managing consent under the UK GDPR. If you are unsure about consent, you should consider seeking legal advice. You must get this right and prioritise UK GDPR compliance to avoid regulatory enforcement action against your business. Further, getting this wrong can significantly damage your reputation as a business.
This factsheet sets out how your business can become GDPR compliant.
Key Takeaways
While consent has been a common term since the UK GDPR came into force, it is vital to understand what it means. Under the UK GDPR, consent requires careful management to ensure it is informed, specific, and freely given. Regularly reviewing and updating your consent practices is essential to maintaining compliance and avoiding penalties. Taking advice on this from a data protection lawyer can help you establish and maintain appropriate consent processes.
If you need advice on consent, our experienced data, privacy, and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
No, pre-ticked boxes do not meet the UK GDPR’s requirements for valid consent. Consent must involve an active, affirmative action by the individual, such as ticking a box or signing up.
If an individual withdraws their consent, you can no longer process their data. As such, you must immediately stop processing their personal data for the purposes covered by that consent.
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