THE CONSENT TO THE PROCESSING OF PERSONAL DATA CANNOT BE ASSUMED

#04The consent to the processing of personal data cannot be assumed

The Court of Justice of the EU in Case C-61/19 Orange Romania SA v Autoritative National Supraveghere and Prelucrarii Datelor cu Caracter Personal (ANSPDCP) confirmed our legal opinion.

In that case, the Court of Justice of the EU has ruled that it is expressly precluded to accept the treasure of „silence, pre-marked boxes or inaction“.

We have often encountered a case where, instead of actively expressing the will of the person concerned, it has become his or her consent to fill in and fill in the box with the prior consent. We have also repeatedly pointed out the incorrectness of the procedure performed.

In such a case, instead of expressing consent to processing (opt-in), it is a mechanism where the person must opt out without his or her prior consent. Not to mention the condition of informing the data subject and the transparency of obtaining consent.

The Court goes on to state that „In such a case, it is practically impossible to determine objectively whether the website user truly gave his consent to the processing of his personal data by not unchecking the pre-marked check box, or in any case whether that consent was informed.

According to the GDPR, it has:

1. The obligation on the information system operator to provide information relating to all the circumstances surrounding the processing of its data, in a comprehensible and easily accessible form that is clearly and simply worded; 
2. The data subject has the right to freely choose whether to grant or refuse consent to the processing of personal data. 

The full text of the decision, as amended, is available in the Slovak language at the following link.