Recital 33*

Go to related Article 7

Commission proposal

(33) In order to ensure free consent, it should be clarified that consent does not provide a valid legal ground where the individual has no genuine and free choice and is subsequently not able to refuse or withdraw consent without detriment.

EDRi’s Proposed amendment

(33) In order to ensure free consent, it should be clarified that consent does not provide a valid legal ground where the individual has no genuine and free choice and is subsequently not able to refuse or withdraw consent without detriment. Consent can only be obtained for processing that is lawful and thus not excessive in relation to the purpose. Disproportional data processing cannot be legitimised though obtaining consent.

Justification

This addition serves to avoid situations in which controllers try to obtain consent for processing that is clearly disproportional. This should give regulators and judges an entry to discuss substantive rather than procedural fairness. Such a look beyond the procedural rules can also be found in general contract law, where principles like ‘good faith’ and reasonableness and fairness ultimately govern relations between parties in cases where specific terms of contract are found to breach these principles.

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