How To Ask For Valid ConsentUnder DPDPA?

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How To Ask For Valid ConsentUnder DPDPA?

Learn the right way to ask for valid consent and how to record and manage it to stay compliant with India’s DPDP Act 2023.

The Digital Personal Data Protection Act 2023, is India’s big move to protect individual privacy rights and control how personal data is used. A key component of the DPDP Act is consent — a core principle which guides how organisations collect, process, handle, and use personal information.

But how do you get valid consent?

This blog will explain the right way to ask for, record, and manage consent.

What is Valid Consent Under the DPDPA?

According to the DPDP Act 2023, consent is considered valid if it is:

For consent to be informed, companies have to give clear details about:

Freely given: There must be no coercion; consent can’t be tied to other terms or required for accessing a service.
Specific: It must be for specified purposes, not grouped with other unrelated activities.
Informed: Users need to understand what they are agreeing to, including the types of personal data, why it’s being processed, and who it’s shared with.
Unambiguous: Users must agree through affirmative action (opt-in consent), not by passive means (opt-out). For example, unchecking a pre-checked box to withdraw consent isn’t valid.
Unconditional: You can’t restrict access to services or products based on consent. For instance, users should be able to access the public parts of your website even if they don’t agree to the use of cookies.

How to Write a Consent Request?

Consent requests need to be clear, easy to understand, and stand out from other information like general terms and conditions.

Here’s how to do it:

Make sure your consent request is easy to spot
Use clear, simple language
Write in a way your audience can easily understand, especially if you’re asking children for consent. In such cases, you might need to involve parents and consider age verification and parental authorisation
Avoid technical or legal jargon, confusing terms and double negatives
Use consistent language and methods for all consent options
Keep your consent requests short and specific, avoiding vague or blanket wording

To maximise transparency, the DPDP Act mandates all consent requests to be either accompanied or preceded by a privacy notice. Let’s discuss what this notice holds.

Helping Data Principals Make an Informed Decision — Privacy Notice

Section 6 of the DPDP Act lays out the rules for ‘notice.’ For collecting valid consent, Data fiduciaries must give individuals a clear and simple privacy notice either before or when asking for consent.

It should detail the personal data being collected and explain the reason for processing.
It must include mandatory information, like how to withdraw consent, address grievances, and file a complaint with the Data Protection Board of India (DPBI).
It must be available in English and, if needed, in any of the 22 languages listed in the 8th schedule of the Indian Constitution.
Additionally, it should provide contact information for the officers responsible for handling personal data.

How to obtain valid consent?

The method you use must clearly show that people are giving their consent through definite, affirmative action. This means people need to actively opt-in. You can ask them to do so using any of these opt-in methods:

Signing a consent form on paper
Ticking an opt-in box, either on paper or electronically
Clicking an opt-in button or link online
Choosing from equally prominent yes/no options
Selecting preferences in settings or a dashboard
Responding to an email asking for consent
Saying yes to a clear oral request for consent
Providing optional information for a specific purpose, like filling out optional fields in a form

Some Best Practices to Follow

Do not rely on silence, inactivity, pre-ticked boxes, opt-out boxes, default settings, or blanket acceptance of terms. These methods assume consent by default and increase confusion and ambiguity.
Provide separate opt-ins for different purposes or processing types. Avoid forcing all-or-nothing consent.
Electronic consent must be user-friendly and not disrupt service use.
Do not force account creation for verifiable consent; offer it as an option for saving preferences or you can link consent to a temporary session ID.
For online services to children, use age-verification measures and seek parental consent.

How should you record valid consent?

Section 7(9) of the DPDP Act states that if there’s a question about consent in a legal proceeding, the data fiduciary must prove that: (i) they provided an appropriate notice, and (ii) consent was obtained based on that notice.

This means you need to not only provide a privacy notice but also keep records of how you collect consent.

You need to have a clear record of how and when consent was given. Keep this evidence for as long as you’re processing the personal data based on that consent to maintain compliance with the DPDPA.

Good records help you monitor and refresh consent as needed. Here’s what to include:

Who consented: The individual’s name or identifier (like an online username or session ID).
When they consented: A copy of a dated document or an online record with a timestamp, or a note of the time and date for oral consent.
What they were told: A master copy containing the consent statement, any privacy notice, and any other privacy information. For oral consent, keep a copy of the script used.
How they consented: For written consent, a copy of the document or form. For online consent, the personal data submitted and a timestamp. For oral consent, a note made at the time of the conversation.
Whether they have withdrawn consent: And when it happened, if applicable.

How to Manage Consent?

With the Digital Personal Data Protection Act 2023 in effect, companies must ensure they have valid consent for processing personal data.

A Consent Management Platform (CMP) simplifies sending, tracking, and managing consent requests across apps and business processes. It integrates with your systems, automating consent management to keep you compliant, enhance user trust, and streamline workflows.

CMPs also provide proof of compliance by maintaining detailed consent records, making it easy to handle consent requests, updates, and audits. This allows you to focus on your core business activities.

If you’re looking for a customisable all-in-one solution for DPDP compliance, your search ends here.

An All-In-One DPDP Compliance Tool Kit for Your Business

With extensive experience in implementing privacy policies across different geographies, DPDP Consultants understands that every business has unique challenges. Whether you’re a startup or a large enterprise, we can create a tailored compliance plan to help you meet DPDP requirements and manage user consent effectively.

Our automated Data Principal Consent Management (DPCM) tool streamlines sending, managing, and tracking consent requests, ensuring transparency and compliance with DPDPA.

Additionally, it helps create the required privacy notices to present before or alongside valid consent.

Key Features

Customisable to align with your business processes
Automates the management of personal data consent requests
Provides a robust system to track and handle these requests internally
Integrates with your company’s email service provider to efficiently manage consent and monitor unconsented personal data
Shares outcomes with department heads, Data Protection Officers, stakeholders, and management
Helps manage consent for your legacy personal data
Suitable for businesses of all sizes and scales with your business

Book A Free Consultation

DPDP Consultants offer customised solutions to help your organisation achieve and maintain DPDP compliance. In addition to the DPCM tool, they provide various services and tools to navigate the DPDP Act, 2023 effectively:

The DPDPA Readiness Review helps organisations understand the impact of the DPDP Act on their operations.
Our Contract Review service ensures that existing contracts align with DPDP specifications, necessitating revisions when necessary.
Our dedicated team provides comprehensive DPDPA Compliance Assistance, establishing internal audit frameworks for regulatory alignment.
We assist in conducting DPIAs to assess and mitigate risks in personal data processing. Our Data Protection Impact Assessment (DPIA) tool automates the process, allowing organisations to conduct DPIAs through a user-friendly platform. It tracks identified risks and ensures all stakeholders are informed about the mitigation progress.
The Data Principal Grievance Redressal (DPGR) tool enables data principals to exercise all their rights through a user-friendly platform, reducing response time and ensuring compliance.
Our Data Protection Awareness Program (DPAP) educates staff on the new privacy law through regular awareness sessions and assessments.

Responsible handling of personal data is essential for creating a fair digital society. DPDP Consultants aim to make personal data compliance seamless, ensuring legal adherence while building trust.