On 15 July, 2011, the Working Party 29 group of European data protection authorities released Opinion 187, on the definition of “consent” as used in the Data Protection Directive and the e-Privacy Directive. Focusing on factors such as whether the consent is (i) informed, (ii) freely given, (iii) specific, (iv) unambiguous, and so on, the paper explores different scenarios in which consents provided by data subjects are sufficient or insufficient for data controllers and processors to rely on when processing relevant data.
Scenarios discussed include:
- how consents can be given over Bluetooth advertising boards;
- consents for employee pictures to be posted to company intranets;
- consents regarding electronic health records and full body security scanners; and
- consents given during the use of an online social network; among others.
Written partly in response to a Commission request, the Opinion will no doubt play into the continuing reform of the Data Protection Directive. Following the European Parliament’s plenary approval of Commission plans for reform of the Directive, in the past several days the Commission has clearly ramped up its activities in relation to specific proposed amendments — on July 14, the Commission launched a new consultation on the proposed data breach notification (a flagship initiative for Commissioner Viviane Reding). Responding to this atmosphere, the Working Party 29 makes several recommendations for legislative reform in the Opinion, including:
- clarifying the meaning of “unambiguous” consent, i.e., explaining that valid consents require a statement or action that signifies agreement from the data subject;
- creating an “accountability obligation” on data controllers requiring them to show data subjects what they regard as valid consent;
- requiring specific language regarding the “quality and accessibility” of the information that forms the basis of the consent, and less ambiguity regarding how data subjects can withdraw their consent; and
- new suggestions regarding how minors (and others who lack legal capacity) can show consent.