Freely given consent - bundling, imbalance, cookie walls
Freely given means a genuine choice and the ability to refuse or withdraw. Consent bundled with other matters (e.g. buying a service) is invalid; under Article 7 a consent request joined to other matters must be clearly distinguishable, and any infringing part is not binding. Consent should not be relied on where there is a clear imbalance, especially with a public authority (Recital 43) or in the employer–employee relationship. Cookie walls do not yield valid consent. Granularity is required - separate consent per purpose.
Consent must offer a genuine choice including the freedom to refuse or withdraw. Under Article 7, where a consent request is joined to other matters it must be clearly distinguishable, and any infringing part is not binding. The 'utmost account' is taken of whether performance of a contract is conditioned on consent to processing that is not necessary for that contract - and 'necessary for the performance of a contract' must be interpreted strictly.
Recital 43 says consent should not be relied on where there is a clear imbalance, in particular with a public authority. Regulators treat the employer–employee relationship as problematic because of subordination - there are very few circumstances where an employer should rely on employee consent.
- Bundled consent (tied to buying a service) is not freely given
- Cookie walls - requiring cookie acceptance to access content - give no genuine choice, so consent is invalid
- Article 7(4) uses 'inter alia', so tying to contracts is only one example of situations caught
- Granularity required: separate consent for each purpose, not one consent for a bundle