All requirements related to transparency and to the provision of information are intrinsically related to consent. Cornerstone of compliance.
Bear in mind that not every storage of cookies or similar technologies require user consent. Except for those “necessary” cookies, it will be necessary to obtain the consent of the data subject in any case.

In this respect, consent must be obtained expressly by clicking on the section “I accept” “I consent” or other similar terms, but this requirement may also be deemed to have been met by other means, such as by inferring it from an unambiguous conduct on the part of the user. Provided that the user has been given clear and precise information about the purposes and aims of the cookies and who will process the data obtained from them.

The first requirement for consent is that it be given freely and in an informed manner.
The manner in which consent is given may be varied. Of course, obtaining consent from the user by clicking on “I agree” will be much easier to demonstrate than obtaining consent through user behaviour.
When proving the adequacy of the consent obtained, you will have to pay attention to the way and the information that was given. That is, the clarity and accessibility of the information, as well as its quality.
Consent cannot be considered to have been obtained by inactive user behaviour. It must be the result of active behaviour.
The user must be informed in advance and clearly what action entails an acceptance of cookies (e.g., continue browsing).
It is worth noting that the action carried out by the user to access the second layer of information, if the layer system is chosen, or the navigation that the user has to carry out to access the relevant information will in no case be considered as acceptance of the cookies.
Another issue that deserves consideration and that many information society service providers seem to be unaware of is that the user must be able to oppose cookies.
Always bearing in mind that the information given to the user to enable him to consent to the use of cookies must be given separately from the information given due to other legal requirements. The consent to the acceptance of the terms and conditions is a consent independent of the consent to be given to accept the privacy or cookie policy.

Consent must be given by the “recipient” of Information Society services.

In other words, the natural or legal person who uses a service, whether or not it is for professional reasons. Therefore, the information must be delivered directly to the user so that he can give his consent.

There is no single form of consent, the determination of the method to be used will depend on the type of cookies we want to install, what their purpose is and whether they are our own or those of third parties.
In this respect, it must be indicated whether the consent is given only for the web page on which it is being requested or whether it is also given for other web pages of the same publisher or even for third parties associated with the publisher within the framework of the purposes of the cookies on which information has been offered.
The following mechanisms for obtaining consent are among those available:

When requesting registration for a service.

It will always be possible to obtain consent when requesting registration for a service, when this consent is not combined with acceptance of the conditions of use, the privacy policy or the general conditions of the service.
During the process of configuring the operation of the website or application.
The provision of consent for the use of cookies can be configured during the process of choice or specification by the user of the characteristics, the consent being integrated into the user’s choice and remembering the settings chosen by the user. In certain cases through consent management platforms (CMP)
Before the time when a service or application offered for example on the website is to be downloaded. (For example, before downloading a video, an image or a game)
In such cases, if the cookies intended to be used are not necessary for the operation of the service or the application, users must be allowed to give their consent before downloading the service or the application. In any case, the user must be properly informed that the request to download such service or application requires the provision of consent for the use of a certain cookie for specific purposes. When this cookie is provided by a third party, the user must be informed, providing information about the purposes of the cookies of that third party, so that the user can make an informed decision.
In the event that a web page offers audiovisual content that is part of the service expressly requested by the user, these cookies will be exempt from the duty to require consent to display the content.
In the event that the interested party wishes to exercise any right of which he is the owner, the exercise of this right may not be conditioned on the acceptance of the cookies.Through the layered information format.
In the case of the layered system, mentioned above, the first layer that should contain the essential information is the layer that should include the consent for cookies.
In these cases the user states whether or not he or she accepts to carry out the action that he or she has been clearly informed of, and there must also always be access to this second layer, with more detailed information and the possibility of accepting or rejecting the cookies.

In addition to expressly accepting the cookies after they have been delivered to the relevant information, the user will also be considered to have accepted them if he or she carries out certain actions that can be interpreted as an unequivocal manifestation of his or her willingness to continue browsing and to accept them.
It is also possible to give consent through the configuration of the browser.
Both the privacy policy and the LSSI suggest that browser settings could be one of the ways to obtain consent. For this option to be valid, it should be possible to use the browser settings in a way that allows users to agree to the use of cookies as provided for in the RGPD and taking into account the WG29 opinion endorsed by the ECDC, i.e. consent should be separated for each of the intended purposes and the information provided should name the data controllers.




One thought on “Consent

26 de December de 2019

Very interesting ! Million thanks for sharing the information!

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