Whether you are a marketer, copy writer, social media coordinator, marketing director, business owner, or in anyway involved with collecting people’s data. There are a few things that you really need to know!

There are 3 very clearly defined types of consent that we need to be aware of when collecting and using personal information. When an organization collects personal information from an individual, most privacy legislation requires that an individual’s consent be given so that an organization can collect, use, or disclose it. However, there are sometimes exceptions to this rule.

Types of Consent

  1. Explicit Consent
  2. Implicit Consent
  3. Opt-out Consent

Lets start with Explicit Consent:

Explicit consent is usually required when clear, documentable consent is required, and the purposes for which it is being provided for is sensitive. Explicit consent can be provided verbally or in writing.

Explicit consent — also known as express or direct consent — means that an individual is clearly presented with an option to agree or disagree with the collection, use, or disclosure of personal information.

Another example of explicit consent is signing any consent form that clearly outlines why an organization would like to collect, use, or disclose your personal information.

An example of explicit consent can be easily explained in the way you might go shopping. You’ve finished with your grocery shopping in a supermarket and have made your way to the counter. The cashier has scanned through all your items and before requesting you to pay; they ask you to provide them with your postal code in order to for them to build a database on where their customers live geographically. There are two ways for you to answer 1. No. and 2. Being that you provide them with your postal code. By providing them with your postal code you have provided them with explicit consent to use the information that you provided them with for marketing purposes. While you won’t necessarily receive communications from them, they could use this data to define in what area’s the majority of their customers live and begin canvasing these area’s. This data could further be analysed using data science whereby they’d be able to accurately determine what the most popular products are among customers in any given area and structure their marketing efforts based on both product and geographical data.

Next we’ll look at Implicit Consent

You provide personal information to an organization and it is used in a way that clearly benefits you and the organization’s expectations are reasonable.You voluntarily offer personal information for an organization to collect, use, or disclose for purposes that would be considered obvious at the time.

Implicit consent — also known as deemed or indirect consent.

Implied consent is usually inferred from your actions and the current circumstance you are in.

For example, if you attach a page of references with your resume and hand it to potential employers, it is implied that you give consent for employers to contact your references. A reasonable person would understand that the very nature of providing references implies that consent is given to contact them.

Lastly a familiar type of consent – Opt-out

Opt-out consent — also known as giving consent by not declining to give consent — means that an individual is given the option to decline consent. If the individual does not clearly decline consent, consent is granted. Opt-out consent is usually done in writing.

Many organizations, especially websites, use opt-out consent as a way to request permission to use your personal information for other purposes.

For example, when purchasing a product online, you may be presented with a checkbox and asked to uncheck the box (opt-out) if you would not like your personal information shared with affiliates for marketing purposes.

Businesses like opt-out consent because it requires action. Many individuals fail to read everything and therefore are far more likely to provide consent for purposes that would benefit an organization.

Types of Consent Opt-out of what you know.

Here is where the problems start to arise for marketers with the different types of consent – Opt-out consent is no longer a valid form of consent, certainly not in the way that is has been defined for years. In fact all the types of consent that you have just read about are technically invalid.

The GDPR requires consent to be opt-in. It defines consent as “freely given, specific, informed and unambiguous” given by a “clear affirmative action.” It is not acceptable to assign consent through the data subject’s silence or by supplying “pre-ticked boxes.”

In order for you to receive permission to contact a customer you need to be given express instruction from the customer regarding what you may contact them about.

Type of consent that you can NOT use:

Let’s dissect this shall we: firstly “marketing communications” is vague and ambiguous, you have not clearly stated what you’ll be using the customers information for. Secondly, what third parties? What do they do? Are you selling the information, giving it freely, are you getting anything in return for my personal information? Can you guarantee the safety of my information? The check box is also pre-selected meaning that I haven’t given you express and implied permission to contact me. The type of consent is set to opt-out.

Repeat after me: Opt-in NOT -out

Now while you don’t expressly have to list every single product or service that you intend to contact the user about, you need to make it clear about why you might be contact them.

For example: Informing them that they will be offered products/services tailed to them (offered based on their data). That their information will be safe (you will not provide it to external parties or agencies) Referring to the privacy policy (collection of cookies and all other required privacy and disclosure related information specific to your business/website). It is unselected therefor providing the customer with the choice to receive your communications.

Find out more about Pieter Geyser