Summary of the Second Report on the Application of the GDPR and its Impact on Consent as a Requirement

Introduction

The report, released on the 25th of July 2024,? discusses the implementation and impact of the General Data Protection Regulation (GDPR) within the European Union (EU). It highlights the ongoing efforts to ensure compliance, address challenges, and enhance the framework for data protection and privacy across the EU.

In this analysis, I will focus on the findings that are related to Consent and Consent as a Requirement.

Key Points on Consent Requirements

Definition and Importance of Consent:

• Consent is a fundamental aspect of GDPR, requiring that individuals have clear, informed, and unambiguous consent for their data to be processed.
• The GDPR mandates that consent must be freely given, specific, informed, and explicit.

Age of Consent:

• Member States can set the minimum age for a child's consent regarding information society services, typically between 13 and 16 years old. This is addressed in Article 8(1) GDPR.

Specific Requirements for Consent:

• Consent must be distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language.
• The consent must be as easy to withdraw as it is to give.

Guidelines and Recommendations:

• The European Data Protection Board (EDPB) provides guidelines to clarify the elements to be taken into account when assessing the level of protection and examples of possible supplementary measures (e.g., contractual and technical safeguards).

Tools for Ensuring Compliance:

• The GDPR includes tools like standard contractual clauses, binding corporate rules, and certification mechanisms to help organizations comply with consent requirements.

Challenges and Improvements:

• The development of codes of conduct and certification has been limited due to burdensome requirements and lengthy approval processes. Stakeholders call for increased transparency and clear timelines for the approval of these tools.
• There is a need for streamlined and shorter approval processes for binding corporate rules and clearer guidance to assist data exporters with compliance.

Children's Data Protection:

• Specific protections are required when processing children's data. The Digital Services Act and initiatives like the Better Internet for Kids (BIK+) strategy aim to ensure children's privacy and safety online, including effective age verification tools and digital consent awareness.

Fragmentation in National Application:

• There is some fragmentation in how Member States implement GDPR, particularly regarding consent age and processing genetic, biometric, or health data. Diverging interpretations by data protection authorities also contribute to this issue.

International Data Transfers:

• The GDPR's Chapter V offers instruments for international data transfers, ensuring that data continues to benefit from a high level of protection when leaving the EU. The Schrems II judgment and subsequent guidelines emphasize the need for equivalent protection levels outside the EU.

Consent is Required!

The GDPR's consent requirements are critical for ensuring data protection and privacy within the EU. While significant progress has been made, ongoing efforts are needed to address challenges, streamline processes, and enhance the framework to ensure effective compliance and protection of individuals' data rights.

If you are in doubt about your consent compliance you can use our privacy scanner for free; we use the EDPS Inspection Tool, which is mentioned in the report, to find violations that lead to high risk. Currently, 97.5% of all sites scanned are found to be in violation of what this report is confirming; Consent is Required and enforcement is coming.

Ronni K. Gothard Christiansen // VikingTechGuy?

Creator, AesirX.io

About the AesirX Privacy Scanner?

The AesirX Privacy Scanner is a powerful tool designed to ensure that websites comply with the stringent requirements of the ePrivacy Directive and GDPR. Using the EU's EDPS (European Data Protection Supervisor) Inspection Tool, AesirX Privacy Scanner thoroughly scans websites to identify non-compliant elements, including cookies, trackers, and beacons.?

AesirX also offers a free Privacy Advisor AI Assistant that helps to explain the scanned results from the EDPS Inspection Tool and offers concrete recommendations on what is needed to resolve compliance issues found in your scan result.?

By using these tools, your businesses can receive detailed reports and actionable insights to rectify compliance issues and avoid potential fines.