HumenhukCIPP/E Study Guide
Ch 7.2.1.1–7.2.1.2 - Freely given

Freely given consent - bundling, imbalance, cookie walls

Reviewed by Victor Humenhuk. Published . Reviewed .

Freely given means a genuine choice and the ability to refuse or withdraw. Consent bundled with other matters (e.g. buying a service) is invalid; under Article 7 a consent request joined to other matters must be clearly distinguishable, and any infringing part is not binding. Consent should not be relied on where there is a clear imbalance, especially with a public authority (Recital 43) or in the employer–employee relationship. Cookie walls do not yield valid consent. Granularity is required - separate consent per purpose.

Consent must offer a genuine choice including the freedom to refuse or withdraw. Under Article 7, where a consent request is joined to other matters it must be clearly distinguishable, and any infringing part is not binding. The 'utmost account' is taken of whether performance of a contract is conditioned on consent to processing that is not necessary for that contract - and 'necessary for the performance of a contract' must be interpreted strictly.

Imbalance kills free consent

Recital 43 says consent should not be relied on where there is a clear imbalance, in particular with a public authority. Regulators treat the employer–employee relationship as problematic because of subordination - there are very few circumstances where an employer should rely on employee consent.

  • Bundled consent (tied to buying a service) is not freely given
  • Cookie walls - requiring cookie acceptance to access content - give no genuine choice, so consent is invalid
  • Article 7(4) uses 'inter alia', so tying to contracts is only one example of situations caught
  • Granularity required: separate consent for each purpose, not one consent for a bundle

Key terms - quick answers

What is “Cookie walls”?
A barrier requiring acceptance of cookies before accessing content; the EDPB says this denies genuine choice, so any consent is invalid.
What is “Public authority”?
A body where Recital 43 warns of a clear imbalance, making freely given consent hard to demonstrate.
What is “Granularity”?
Providing a separate consent mechanism for each distinct processing purpose.
What is “Recital 43”?
Recital warning consent should not be relied on where there is a clear imbalance between subject and controller.

This independent lesson uses active recall, spaced retrieval and scenario practice. Read the full study method.