Ensure your website is compliant with our Cookie Consent Management Platform; PrivacyConsent Learn More!
← Back to glossary

Explicit Consent

Glossary Contents

Explicit consent is a fundamental concept in data privacy. It refers to the clear, unequivocal permission given by an individual to an organisation to process their personal data. This concept is central to many data privacy laws and regulations worldwide, including the General Data Protection Regulation (GDPR) in the European Union.

Understanding explicit consent is crucial for any organisation that collects, processes, or stores personal data. It helps ensure compliance with data privacy laws, protects the rights of individuals, and fosters trust between organisations and their customers or users. This glossary entry delves into the intricate details of explicit consent, its importance, how it differs from other types of consent, and the legal implications of not obtaining it.

Definition of Explicit Consent

Explicit consent, in the context of data privacy, is a clear and unmistakable indication of a data subject's agreement to the processing of their personal data. It is typically obtained through a clear affirmative action, such as ticking a box or signing a form, and must be freely given, specific, informed, and unambiguous.

Explicit consent is not implied or inferred from a person's actions or inactions. It requires a positive action that clearly indicates the person's agreement. It is also revocable, meaning that a person can withdraw their consent at any time.

Freely Given

For consent to be considered explicit, it must be freely given. This means that the individual has a genuine choice and is not coerced or pressured into giving consent. The individual should also be able to refuse or withdraw consent without suffering any detriment.

Furthermore, consent should not be bundled with other terms and conditions, nor should it be a precondition for receiving a service unless the processing of personal data is necessary for that service.

Specific and Informed

Explicit consent must be specific and informed. This means that the individual should be given clear and concise information about the data processing activities, including the purpose of the processing, the types of data being processed, and the potential risks involved.

The information should be provided in clear and understandable language, avoiding technical jargon or legalese. It should also be easily accessible, allowing the individual to make an informed decision about giving consent.

Difference Between Explicit Consent and Implied Consent

Explicit consent and implied consent are two different concepts in data privacy. While both involve the individual's agreement to the processing of their personal data, the way this agreement is expressed differs significantly.

As previously mentioned, explicit consent requires clear affirmative action from the individual. It cannot be inferred from silence, pre-ticked boxes, or inactivity. On the other hand, implied consent, also known as tacit or passive consent, is inferred from the individual's actions or circumstances.

Implied Consent

Implied consent is based on the premise that the individual's actions, or the context in which personal data is provided, indicate their agreement to the processing of their data. For example, if a person provides their email address when making a purchase, it could be inferred that they consent to receiving transactional emails related to their purchase.

However, implied consent is not sufficient for certain types of data processing, especially those involving sensitive personal data. In such cases, explicit consent is required.

Explicit Consent

Explicit consent, on the other hand, leaves no room for doubt or ambiguity. It requires a clear and affirmative action that indicates the individual's agreement to the processing of their personal data. This could be in the form of a signed consent form, a ticked box on a website, or a verbal agreement.

Explicit consent is particularly important when processing sensitive personal data, such as health information, religious beliefs, or political opinions. In such cases, the individual's explicit consent is often a legal requirement.

Importance of Obtaining Explicit Consent

Obtaining explicit consent is not just a legal requirement but also a best practice in data privacy. It helps protect the rights and freedoms of individuals, promotes transparency and trust, and can even enhance an organisation's reputation.

Explicit consent ensures that individuals are fully informed about how their data will be used and gives them control over their personal data. This can lead to increased trust and loyalty, as individuals are more likely to engage with organisations that respect their privacy rights.

Legal Compliance

One of the main reasons for obtaining explicit consent is to comply with data privacy laws and regulations. Failure to obtain explicit consent when required can lead to hefty fines and penalties, as well as damage to an organisation's reputation.

For example, under the GDPR, organisations can be fined up to €20 million or 4% of their annual global turnover, whichever is higher, for serious violations of the regulation, including failure to obtain explicit consent when required.

Trust and Transparency

Obtaining explicit consent also promotes trust and transparency. When individuals are informed about how their data will be used and are given a choice, they are more likely to trust the organisation and feel comfortable sharing their personal data.

Transparency is a key principle of data privacy. By clearly explaining their data processing activities and obtaining explicit consent, organisations can demonstrate their commitment to transparency and earn the trust of their customers or users.

How to Obtain Explicit Consent

Obtaining explicit consent involves more than just asking for it. It requires a well-designed consent mechanism, clear and concise information, and a record-keeping system to prove that consent was obtained.

Here are some best practices for obtaining explicit consent:

  • Use clear and plain language: Avoid technical jargon or legalese. The information should be easily understandable to the average person.
  • Be specific: Explain exactly what the individual is consenting to. This includes the purpose of the data processing, the types of data being processed, and the potential risks involved.
  • Use a clear affirmative action: This could be a ticked box, a signed form, or a verbal agreement. Pre-ticked boxes or inactivity should not be used as they do not constitute explicit consent.
  • Keep records: Keep a record of when and how consent was obtained, as well as the information that was provided to the individual. This can help prove that consent was obtained if challenged.
  • Allow for withdrawal of consent: Individuals should be able to withdraw their consent at any time, and it should be as easy to withdraw consent as it was to give it.

Consent Mechanism

The consent mechanism is the tool or method used to obtain explicit consent. It should be designed in a way that ensures the consent is freely given, specific, informed, and unambiguous.

For example, a consent form or a tick box on a website could be used to obtain explicit consent. The form or box should be clearly visible and easy to use, and it should require positive action from the individual, such as ticking the box or signing the form.

Information Provision

The information provided to the individual is crucial in obtaining explicit consent. It should be clear, concise, and easily understandable, and it should explain exactly what the individual is consenting to.

The information should include the purpose of the data processing, the types of data being processed, the potential risks involved, the individual's rights, and how they can withdraw their consent. It should also be easily accessible, allowing the individual to make an informed decision about giving consent.

Legal Implications of Not Obtaining Explicit Consent

Failure to obtain explicit consent when required can have serious legal implications. It can lead to fines and penalties, legal action, and damage to an organisation's reputation.

Under data privacy laws and regulations, such as the GDPR, organisations are required to obtain explicit consent for certain types of data processing, especially those involving sensitive personal data. Failure to do so can result in hefty fines and penalties.

Fines and Penalties

Under the GDPR, organisations can be fined up to €20 million or 4% of their annual global turnover, whichever is higher, for serious violations of the regulation, including failure to obtain explicit consent when required.

Other data privacy laws and regulations also provide for fines and penalties for failure to obtain explicit consent. For example, under the California Consumer Privacy Act (CCPA), organisations can be fined up to $7,500 per intentional violation.

Legal Action

Failure to obtain explicit consent can also lead to legal action. Individuals whose data has been processed without their explicit consent may have the right to sue the organisation for damages.

In addition, data protection authorities may take legal action against organisations that fail to obtain explicit consent. This could result in court orders, injunctions, or other legal remedies.

Reputational Damage

Beyond the legal implications, failure to obtain explicit consent can also damage an organisation's reputation. Trust is a key factor in the relationship between organisations and their customers or users, and failure to respect their privacy rights can lead to a loss of trust.

Furthermore, news of data privacy violations can spread quickly, leading to negative publicity and damage to the organisation's brand image. Therefore, obtaining explicit consent is not just a legal requirement but also a best practice in data privacy.

Explicit consent is a crucial concept in data privacy. It ensures that individuals are informed about how their data will be used and gives them control over their personal data. It also helps organisations comply with data privacy laws and regulations, promotes transparency and trust, and can enhance their reputation.

Therefore, understanding explicit consent and how to obtain it is essential for any organisation that collects, processes, or stores personal data. By doing so, they can protect the rights and freedoms of individuals, comply with legal requirements, and foster trust and loyalty among their customers or users.

Try PrivacyEngine
For Free

Learn the platform in less than an hour
Become a power user in less than a day

PrivacyEngine Onboarding Screen