Q&As

Can the opt-in box for acceptance of website terms and conditions, acceptance of its privacy policy and consent to receiving email marketing be combined or is it necessary to obtain separate forms of consent for each of these?

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Published on LexisPSL on 13/08/2018

The following TMT Q&A provides comprehensive and up to date legal information covering:

  • Can the opt-in box for acceptance of website terms and conditions, acceptance of its privacy policy and consent to receiving email marketing be combined or is it necessary to obtain separate forms of consent for each of these?
  • The definition of consent
  • General requirements
  • The interplay between PECR 2003 and the GDPR

Three different areas of law are relevant in this context:

  1. terms and conditions: this is primarily a contractual issue based on the law of contract and in particular the rules on acceptance. See further Practice Notes: Standard terms and conditions—incorporation and Forming enforceable contracts—acceptance

  2. privacy policy: the provision of certain information to data subjects in relation to the processing of personal data, and the need to have a lawful basis (such as consent or legitimate interests) for processing that data, is a requirement of the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679

  3. email marketing consent: the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003), SI 2003/2426 prohibit the sending of unsolicited texts or emails to individuals without their consent, save in limited situations when marketing similar products or services to existing contacts who have not objected

The definition of consent

The GDPR significantly raises the bar on the definition of

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