An article from: Phil Lee, Field Fisher, June 7th 2016
“The GDPR makes crystal clear is that even unambiguous consent must be given by an affirmative action – so does that mean implied consent is no longer possible?
To answer that, let’s start with the easy case first. If someone says “Yes, I agree” or ticks an unchecked box to say “I consent”, they have indicated their consent through an affirmative action. Not only that, but they have done so through an explicit affirmative action – sufficient to satisfy the consent requirements for both ordinary personal data AND sensitive personal data processing.
But what about a situation where an individual never says “I agree”, and never ticks a box to say “I consent”. In these cases, they are not giving any kind of explicit consent – but can their consent still be inferred or implied?
The short answer is yes, but only provided certain conditions are met…” – Phil Lee, June 7th 2016
This brilliant article from Phil Lee at Field Fisher breaks down the crucial difference between between ‘unambiguous’ and ‘explicit’ consent with a set of crystal clear examples and identifies what companies will and won’t be able to do once the laws come into force in 2018.
The difference between a couple of descriptive words should be a trivial issue, but this is far more important. As Phil highlights above, it could mean some drastic changes to your every day practices.
Nevertheless, it’s a great read and provides some much needed clarity to the legal jargon in terms we can all understand.