GDPR consent: strategic pillar for the protection of personal data
Consent is the most strategic legal basis under the GDPR for the processing of any personal data. It requires a positive, free, specific and informed action by the person concerned, in particular for the collection of cookies, newsletters and marketing treatments. Invalid consent exposes your organization to major sanctions (GDPR fines, loss of trust, suspension of campaigns). To ensure defensible compliance and secure your future treatments, including those involving AI and the AI Act, it is crucial to document each step, offer a fair choice (accept/refuse), and ensure full traceability of evidence.
Consent is an essential legal basis of the GDPR for all processing of personal data. It allows data to be collected and used only when the person concerned has given a free, specific, informed and unequivocal agreement. This foundation is particularly used for:
- The collection of cookies and trackers
- Emailing campaigns and newsletters
- The personalization of services
- Marketing and advertising treatments
- Treatments involving sensitive or behavioral data
Unlike legitimate interest or the execution of a contract, consent requires a positive, documented and verifiable act. It is also a fundamental marker of transparency and trust among users, which is strategic for the image of your SaaS company.
5 fundamental requirements for valid and defendable consent
To be considered compliant by the authorities (CNIL, EDPB), consent must meet five strict criteria:
Free consent
The user should be able to refuse treatment without consequences. Les Cookie Walls, pre-ticked boxes or conditions requiring acceptance are considered invalid by the GDPR.
Informed consent
The person must understand: the purpose of the treatment, the categories of data collected, the possible partners, the storage period and the consequences of a refusal. This information should be simple and accessible.
Specific consent
Each processing purpose must be validated separately. An “Accept All” button is only valid if a “Reject All” button is offered in an equivalent and accessible way.
Unequivocal consent
Consent must result from a positive act: a click, a voluntary checkbox or an explicit button. Simply browsing the site or using the service is not enough to prove agreement.
Traceable and revocable consent
The organization must record proof of consent (date, policy version). Withdrawing should be as simple, immediate and effective as the act of accepting, via a permanent link or a user dashboard.
Risks and sanctions: the consequences of poorly managed consent
Recent sanctions show the critical importance of this legal basis, whether you are a DPO, DSI or CISO.
These breaches led to considerable fines:
- Google: 325 million euros for advertising cookies without valid consent
- SHEIN: 150 million euros for non-prior consent on trackers
- Criteo: 40 million euros for treatment without proof of consent
Common mistakes and GDPR fine amounts
Common mistakes include a lack of documented evidence, opaque consent banners, the fact that refusal is more difficult than acceptance, or the processing of sensitive data without explicit consent.
Consequences of non-compliant consent
Non-compliant consents lead to GDPR fines, orders to stop processing, a loss of user trust, an impacted digital reputation and a suspension of marketing campaigns.
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Best practices and Adequacy's role for defensible compliance
To minimize risks, adopt a strategy that focuses on transparency and documentation:
- Transparency
Explain the purposes and the data collected in a clear and simple way. Avoid legal jargon
- Fair choice
Guarantee that refusing consent is as easy and visible as accepting it. It is an essential audit criterion
- Documentation and audit
All consent versions, with their respective date and purpose, must be recorded and archived
- Rights Management
Offer immediate and clearly indicated withdrawal to the user
Our SaaS solution simplifies this complexity for compliance professionals. Adequacy centralizes and tracks all consents, facilitates the management of preferences and secures your approach to audits by ensuring irrefutable proof of compliance.
Concrete use cases and news (Marketing, AI, B2B)
- Digital marketing: opt-in is mandatory for the majority of non-essential advertising or analytical cookies
- B2B prospecting: explicit consent is often required, but legitimate interest can be used subject to a documented balance test and clear information
- AI and customer data: consent must be strengthened to train AI models, especially if it is possible to identify individuals or if you use data impacted by future AI Act requirements
- Sensitive data: explicit consent is required for the processing of health, biometric or behavioral data (profiling)
FAQ - GDPR consent
Is RGPD consent required for all cookies and trackers?
No Cookies that are strictly necessary for the operation of the service do not require the user's prior consent.
Is implicit consent (by simple navigation) sufficient according to the GDPR?
No Consent must be active, positive, and unequivocal. The simple use or navigation on the site cannot in any way constitute a valid proof of consent.
What is the immediate procedure when the user withdraws their consent?
The processing of personal data based on this consent must stop immediately. The organization must ensure that withdrawing is as simple and effective as accepting.
Is consent alone sufficient for the processing of sensitive data (health, biometrics)?
Yes, but it needs to be explicit and reinforced. The GDPR imposes additional guarantees for these categories of data.
How does Adequacy centralize and secure consent management?
Adequacy ensures complete historical traceability, centralizes the management of user preferences, and offers automated workflows for withdrawing and modifying consents. This ensures documentation that meets audit requirements.
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