The concept of consent existed under the DPA 2002 but GDPR introduced more stringent rules for consent to be valid. The Implementing Regulations allowed controllers to continue to rely on consents which were valid under the DPA 2002 for a transitional period. Now that the transitional period has come to an end, controllers may only rely on consent which complies with the GDPR, in summary:
- Consent must be active and there must be tangible evidence of consent.
- Delivery of services should not be contingent on consent.
- Consent should be clear and separate, rather than hidden away in terms and conditions.
- It should be easy for the data subject to withdraw consent.
- To be valid consent has to be freely given. This can be difficult where there is an imbalance in the relationship between the parties such as in an employer and employee scenario.
Consent is only one of the possible grounds for lawful processing of personal data. We have seen businesses move away from seeking consent and instead considering the other conditions for lawful processing which may apply, such as being under a legal obligation to process that data, the performance of a contract to which the data subject is a party or pursuing the legitimate interests of the controller or a third party.
Transparency and Data Privacy Notices
Transparency is a key theme under GDPR. Data controllers must provide individuals with all the information necessary to understand what will happen to their personal data, how it will be protected, how long it will be kept, where it may be transferred to, and know what rights they have in relation to that data. This information must be provided in a concise, transparent, intelligible and easily accessible form in clear, plain language. Under GDPR, there is a positive obligation to provide this information at the time it is collected, rather than just making it available upon request.
Data controllers may also receive personal data from third parties, such as details of directors, shareholders or employees of a corporate client. In these circumstances controllers must provide information to the individual concerned within a reasonable period of having obtained the data but within no longer than a month. There are some exceptions to this requirement where the data subject has that information already, or it is impossible to give them the information or it would involve a disproportionate effort to do so, or where it would make it impossible or seriously impair the objective of the processing.
There are further changes on the horizon, with the proposed establishment of an independent Information Commission which will replace the current Information Commissioner’s Office. Additionally, the conditions and exemptions set out in the Implementing Regulations are likely to be simplified and a new fee scale for maintaining an entry on the register of controllers and processors introduced. The Unsolicited Communication Regulations 2005 will also be updated to ensure that the Information Commission has sufficient enforcement powers to prevent the Isle of Man becoming the “Isle of Spam”.
While GDPR is a year old, data protection and privacy will continue to be an evolving area of law so controllers, processors and data protection officers should continue to keep abreast of developments.