Lawful Basis: Consent

Consent means that individuals are offered real choice and control over their own personal data.
Consent is a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the people data agreement to the processing of the personal data.

Asking for Consent

Consent requires a very clear and specific statement with an explicit opt-in, so pre-checked boxes or other default pre-selected consent methods are illegal.
If the consent includes different purposes or several processing types a separate consent must be asked for each of them.

The statement of why the data is being gathered and what will be done with it must be clearly stated and based on the most appropriate lawful basis for processing.
Therefore, when an individual gives consent, it must be clear for all parts involved what is the consent about.

Public authorities and employers should take extra care to show that consent is freely given, and should avoid over-reliance on consent.

Children merit specific protection with regard to their personal data. Special attention must be give for purposes such as marketing, user profiles and the collection of personal data when using services offered directly to a child.
Ocasional exceptions exist in the context of preventive or counselling services offered directly to a child.
See Article 8 for details.

Auditing Consent

Because consent is auditable, it is necessary to keep records of when, how and what has the individual has given consent to.

Managing Consent

Individuals can manage the consent, including withdraw the consent at any given time.
It should be easy for people to withdraw the consent and that should be stated when asking for consent.


Genuine consent should put individuals in charge, building customer trust and engagement which will enhance your reputation.

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Basis for Personal Data Processing

GDPR enforces organizations to have a valid lawful basis in order to process personal data.
There are six lawful bases, all equal in importance, though the selection of which basis is the most appropriate to use will depend on the organization purpose and its relationship with people.

The lawful basis must be determined before the data processing begins because it should be documented along with the purposes of the data processing, and included in the privacy notice accepted by the individuals. This makes it clear for the people to know what they are consenting.

If the purposes change, unless it is compatible with the initial purpose, it will require a change of the lawful basis, and it could be necessary to redo the processes of documentation, consenting, etc..

Lawful Bases for Data Processing

The six lawful bases for personal data processing are defined in Article 6:

  • the data subject has given consent to the processing of their personal data for one or more specific purposes;
  • processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
  • processing is necessary for compliance with a legal obligation to which the controller is subject;
  • processing is necessary in order to protect the vital interests of the data subject;
  • processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
  • processing is necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.

Processing activities that fall under performance of a contract, legal obligation, vital interests and public task may be fairly straight-forward to identify. The key for many will be assessing whether Consent or Legitimate Interests will be most appropriate for specific processing of personal information.

Processing Special Category Data

When processing special category data organizations need to identify both a lawful basis for the general processing and an additional condition for processing this type of data.

Criminal Data Processing

When processing criminal conviction data, or data about offenses, it is necessary to identify both a lawful basis for general processing and an additional condition for processing this type of data.

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