About the temptation to tick the box for data protection consent

von Jan Schwemler

Data subjects must tick the boxes for data protection consents themselves – this is what the GDPR wants, and this is how the ECJ and BGH decided: If those responsible want to process data on the basis of consent in accordance with Art. 6 Para. 1 lit. a GDPR, the checkboxes must be ticked be set by those affected themselves. Actually, it has been clear for a long time that the pre-filling of the checkboxes does not constitute consent by the person concerned, which meets the requirements of Art. 4 No. 11 GDPR.

Nevertheless, netzpolitik.org revealed that some o2 dealers do exactly the same. If there are questions about consent to the use of data, ticks are set in advance and then presented to the customer for signature.

Business model tempts to circumvent the regulations

In addition to other media, netzpolitik.org reported on July 29th, 2021 that the O2 dealers would have problems obtaining customer consent for various types of data processing without ticking the box. Without the consents, however, the merchants would miss out on commissions.

The problem is therefore that at least 9 ticks can be selected for granting different consents by customers. In order to receive the commissions, the traders would have to meet a quota of 75%. However, many customers are not willing to give all or sufficient consents for the traders to meet their quota. A one hundred percent success rate is difficult to achieve.

Responsibility is passed downwards

In addition, netzpolitik.org reports that the dealers are shifting the responsibility for obtaining consent to the bottom. They give their employees incentives to get as many consents as possible from customers. o2 has already received information about these problems, but does not want to change anything in its system. According to o2, the consents granted only made up a small proportion of the calculation basis for the commissions.

The installation of the o2 app is also included in the commission calculation

Not only the number of consents to different data processing is necessary for the payment of commissions, the installation of the o2 app is also relevant for the calculation basis. The aim is to achieve a rate of 50% of all contracts. According to netzpolitik.org, this means that sellers simply install the app on the mobile phones themselves and provide the associated login and phone number for the customer. If you want to check whether you are affected by such a procedure, you can find instructions on netzpolitik.org.

It is essential to observe the requirements for a GDPR-compliant consent

The o2 model makes it clear how problematic it can be to link the granting of voluntary consent by customers with commissions for dealers. In order to compensate for economic disadvantages or to obtain advantages, companies come up with a lot to get their customers to give consent or to install apps. Every consumer experiences this himself in everyday life. Companies make discounted offers within their apps or grant discounts when registering for newsletters. Whether the consents are given voluntarily depends on the consideration of the specific design. Check marks are only one of many sources of error.

In order for the consent given to be used as a valid legal basis according to Article 6 (1) (a) GDPR, the companies responsible have to observe a few things. If you are unsure whether you have designed your offer for your customers in compliance with data protection regulations, take a look at our blog or speak to us. Together with you, we will find the right solution for you and your customers! Simply use our contact form.

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Jan Schwemler

Auszubildender

Jan Schwemler absolviert bei der aigner business solutions GmbH eine Ausbildung zum Kaufmann für Büromanagement. Jan hat in der Wirtschaftsschule Passau kaufmännische Abläufe erlernt. Nun lernt er die Umsetzung in der Praxis kennen. Seine Kreativität, Talent für Bildbearbeitung und Leidenschaft für Videoschnitt darf er in unserer Marketingabteilung einbringen. Nicht zuletzt durch seine Mitarbeit dürfen sich unsere Kunden und Follower stets über neue interessante Inhalte auf unseren Social Media Kanälen und in unseren Newslettern freuen.