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However significant changes apply to the main
legal basis used for
targeted advertising
:
Consent:
to be valid, consent must be
unambiguous, informed, specific and freely given.
• Unambiguous:
a clear and affirmative action
is
now required to obtain a valid consent from the
user. Silence, pre-ticked boxes or inactivity are
no longer sufficient.
• Informed: the consent request and the nature of
the processing must be presented in a manner
which is
clearly distinguishable from other
matters
, in an
intelligible
and easily accessible
form, using
clear and plain language
.
• Specific: the data subject should be aware
at least of the
identity
of the controller and
the
purposes
for which the personal data
will be processed, as well as the r
ecipients or
categories of recipients
of the personal data
6
.
• Freely given: consent is presumed not to be
freely given:
-- where there is a
clear imbalance
between
the data subject and the controller;
PART
03:
GROUNDS FOR PROCESSING personal data
The list of legal grounds allowing the processing of personal data does not change:
Consent
Legitimate
interest
Performance
of a contract
Legal
obligation
Vital interest
of the data
subject
Public
interest
-- if the data subject has
no genuine choice
or is unable to refuse or withdraw consent
without detriment;
-- and/or if the provision of a service
is
dependent on
(consenting to) the
processing of personal data despite such
processing
not being necessary
for the
provision of the requested service.
The last two bullet points cast a doubt on the future
interpretation of a valid and freely given consent
with regard to so-called “tracking walls”, i.e. the
capacity for website providers to block access to
their content if users oppose the processing of
their data for tracking purposes
7
.
This will only be resolved through GDPR
implementation. Should Member States or the
Courts decide to adopt a restrictive interpretation
of this provision, broadcasters and sales houses
may have to adapt their business models (e.g.
offering a pay-for alternative which may help
qualify the consent as freely given).