Irwin Mitchell: Consent will be a 'weak legal basis' for data processing under GDPR

Companies 'risk legal action' if they're entirely reliant on consent forms

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Irwin Mitchell solicitors warned companies this week that relying on consent as a basis for data collection would be legally unsound under GDPR.

Speaking at IP Expo in London on Thursday, Irwin Mitchell partner Joanne Bone said that stricter rules around the gathering of consent coming into force next year will mean that some companies that rely on it entirely risk facing substantial fines from the UK regulator.

"There are lots of different legal basis options. Everyone is obsessed with consent, but it's not the only basis for using personal data, and in my view, is a bad legal basis. One of the reasons is that consent can be withdrawn. I would generally go through all the other ones first before considering whether to use consent."

Under GDPR, businesses will need to demonstrate that they have a basis for transferring and processing user data. One of the ways you can do that is by ensuring you have 'legitimate interests', or showing that you are using data for legitimate business purposes and that no privacy rules are being breached.

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Obtaining consent will be far more difficult under GDPR, explained Bone, and "consent obtained under the Data Protection Act is unlikely to be GDPR compliant. It's not that easy to obtain, so it's another reason why I'd suggest you steer away from it if possible.

This is largely due to the fact that implied consent will disappear under the new rules, and any agreement by the data subject will need to be separated from acceptance of terms and conditions, which many companies currently use as a catch-all term.

Of course some businesses will be unable to move away entirely from consent as a legal basis and, for those that will remain reliant on it, forms will need to be completely redrafted before they are compliant.

"If you have marketing consents, you will need to track those and make sure they are compliant, and refresh them every two years," said Bone. "A lot of consents these days are fairly woolly in terms of what you're consenting to, and most [subjects] don't have a clue."

"There's not a huge amount of time left. But it's still doable if you haven't started yet."

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