Data subject consent: How will the General Data Protection Regulation affect this?

Abstract

EU data protection law assumes an innate right to privacy. Current consent requirements are contained in Directive 95/46/EC, which sets the standard of consent given by data subjects as ‘freely given, specific and informed’. The General Data Protection Regulation (GDPR) is due to come into force in 2018. The standard of consent is being raised to being ‘freely given, specific, informed and unambiguous’. The current Article 29 Working Party approach to consent sets a high bar. The Information Commissioner’s Office (ICO) has a more relaxed position than the Article 29 Working Party. Obtaining consent to direct marketing is challenging. The ICO view is that consent should be given on an opt-in rather than opt-out basis. Indirect consent is particularly difficult to obtain. Article 7(3) of the GDPR will give data subjects the right to revoke their consent at any time. The e-Privacy Directive governing electronic marketing is currently under review and will bring with it crucial changes that are expected to harmonise with the GDPR. Best practice advocates a layered approach to privacy notices. Privacy notices can be used as a tool to enhance customer engagement experiences.