Only 5 more weeks to go before the GDPR becomes fully effective. Preparing your company for the application of this new regulation requires a correct understanding of its principles. Each week, we highlight one particular misconception regarding the interpretation of the GDPR.
How should valid consent be proven?
Article 7 of the GDPR reads: “the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data”. However, the GDPR does not contain specific, compulsory provisions in relation to the conditions for proving how the consent was given or obtained.
In that respect, the GDPR is inconsistent with the provisions of certain previous national legislations implementing Directive 95/46/EC (such as, e.g., the Italian Legislative Decree no. 196 of June 30, 2003, whereby the data subject’s consent could be deemed to be effective only if it is “documented in writing”).
As a consequence, data controllers have the right to demonstrate how the valid consent was obtained by using any means allowed under their legal systems. In that respect, the use of any means for keeping a record of the data subjects’ consent - such as, for example, written statements, also statements stored by electronic means, or tick boxes to be set on internet websites specifically addressing the consent to be sought for the envisaged data processing activities - could be recommended.
Stibbe, together with Chiomenti, Cuatrecasas, GIDE and Gleiss Lutz, have gathered this useful information, reflecting some common misconceptions about the implementation of the GDPR.