By Dan Cooper and Rosie Klement

On March 2, 2017, the Information Commissioner’s Office (“ICO”) released draft guidance for UK organizations on how the notion of consent will be interpreted and applied when the General Data Protection Regulation (“GDPR”) comes into force in May 2018.

The ICO is currently engaging in a public consultation on the draft guidance, which expires on March 31, 2017.  Stakeholders and the public can review the guidance and provide their views on the ICO’s website.  The ICO is expected to release a final version in May 2017, but will continue to revise the guidance to take account of developments at the European level.

The GDPR sets a high standard for consent, which goes beyond the current standard under the Data Protection Directive 95/46/EC and implementing Member State legislation, such as the UK Data Protection Act 1998.  The guidance notes that the basic concept of consent is not new to the EU data protection framework, but warns that the concept of consent under the GDPR will bring about many practical changes in how organizations procure consents.

The ICO guidance offers some practical recommendations on how to comply with the GDPR consent standard, and explains what counts as valid consent and how to obtain it.  Going forward, organizations are advised to take note of the following:

  • consent must involve a clear affirmative action and be unambiguous;
  • consent to processing an individual’s data should not generally be a precondition for signing up to a service;
  • consent should appear separate from other terms and conditions;
  • pre-ticked checkboxes will not secure an effective consent;
  • clear records should be kept to demonstrate that individuals have furnished consent; and
  • data subjects should have the right to easily withdraw their consent at any time.

Organizations are encouraged to review their existing consents and consent mechanisms to ensure they meet the GDPR standard.  If the standard is not met, fresh consents must be obtained.

This is the ICO’s first topic-specific guidance on the GDPR, with guidance on contracts and liability expected later this year.  More guidance is also expected from the Article 29 Working Party, which intends to release guidance on such topics as transparency, certification, breach notification and data transfers, which will supplement their previous guidance on Data Portability, Data Protection Officers and the One Stop Shop.  More details can be found in our recent article on the Article 29 Working Party guidance.

InsidePrivacy will be tracking and reporting on these developments.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.