Consent

What Is Consent?

Consent refers to a clear, informed, and voluntary agreement by an individual (the data subject) for their personal data to be collected, processed, stored, or shared.

This concept is particularly important in data privacy laws, for example, the General Data Protection Regulation (GDPR) in the European Union.

Third-party definition

The informed, unambiguous and freely given permission of data subjects to have data relating to them processed. – Clym

Consent: US vs. Europe

Consent is handled differently in the United States (US) and Europe.

Under the General Data Protection Regulation (GDPR) in the EU, organizations can’t (typically) use your data unless they have your consent (though there are other legal reasons that give them the right to use your data, like complying with legal obligations).

In contrast, in the US, organizations are generally permitted to use your data unless you object.

For example, under the California Consumer Privacy Act (CCPA), organizations can use data collected about data subjects without confirming this with them.

Instead, data subjects have the right to make a request to opt-out, which businesses are obliged to comply with (in most cases).

Here’s a comparison of how consent is treated in the US and Europe:

Europe (Primarily under GDPR)

Strong emphasis on consent. The General Data Protection Regulation (GDPR) puts a strong emphasis on consent. Consent must be informed, specific, and unambiguous. It also needs to be given freely.
Explicit consent for sensitive data. For processing sensitive personal data (like health information, political opinions, etc.), explicit consent is required.
Right to withdraw consent. Individuals can withdraw their consent at any point, and it must be easy to do so.
Opt-in approach. Consent typically involves an active opt-in, such as checking a box or choosing settings in a digital interface. Silence or inactivity does not constitute consent.
Documentation and accountability. Organizations must keep records of how and when consent was obtained and demonstrate compliance with consent requirements.
Children’s data. GDPR has specific provisions regarding consent for children’s data.

United States

Implied consent. Consent in the US is often implied, such as through the use of a service after being informed of data practices (i.e., opt-out approach).
Less stringent on consent. While certain laws require explicit consent for specific types of data (like medical or financial information), the general approach to consent is less stringent than in Europe.
Sector-specific regulations. Different sectors have different consent requirements. For example, COPPA requires verifiable parental consent for collecting data from children under 13.
Opt-out model. In many cases, consumers are provided with the opportunity to opt out rather than needing to opt in for data collection and processing.

Why Is Consent Important for Privacy?

There are several reasons why consent is important for privacy.

Consent gives individuals control over their personal information. Laws that require consent ensure individuals have a say in who collects their data, what data is collected, and how it is used or shared.

Requiring consent also helps prevent the misuse and unauthorized access to personal data. It acts as a safeguard against data being used for purposes other than what the individual agreed to.

In many cases, individuals may not even know who has their personal data or what they’re doing with it. This can be particularly devastating when breaches happen. Since not all organizations issue breach notifications, individuals may be unaware their personal data was compromised.