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EU: EDPB adopts guidelines on consent under the GDPR

The European Data Protection Board ('EDPB') adopted, on 4 May 2020, its Guidelines 05/2020 on Consent under Regulation 2016/679 ('the Guidelines'). In particular, the Guidelines represent a slightly updated version of the Article 29 Working Party ('WP29') Guidelines on Consent under Regulation 2016/679. Specifically, the Guidelines outline that there was a need for clarifications on the validity of consent provided by the data subject when interacting with cookie walls and on the issue of scrolling or swiping through a webpage as a clear and affirmative action of consent. 

Moreover, the Guidelines state that, under the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), a service provider cannot prevent data subjects from accessing a service on the basis that they do not consent, and that access to services and functionalities must not be made conditional on the consent of a user to the placement of cookies in his/her terminal equipment. Furthermore, the Guidelines find that scrolling or swiping through a webpage, or similar user activity, will not satisfy the requirement of a clear and affirmative action, since it may be difficult to distinguish such actions from other activity or interaction of the user. Therefore, the Guidelines state that determining that unambiguous consent has been obtained will not be possible, and that it will be difficult to provide a way for the user to withdraw consent in a manner that is as easy as granting it. 

You can read the Guidelines here

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