CONSENT ACCORDING TO GDPR AND LGPD
When a user directly enters personal data on a site/app, for example by filling in a contact form, service registration or newsletter subscription, it is necessary to collect consent that is freely given, specific and informed. Under the GDPR, it’s also necessary to keep unambiguous records that allow you to demonstrate that valid consent was collected.
Similar to the GDPR, the Brazilian LGPD also requires the data controller to provide an unambiguous proof of consent, giving evidence that the user's consent was collected by a valid means.
What is free, specific and informed consent?
You must obtain consent for each specific processing purpose – for example, a consent to send newsletters and another consent to send promotional material on behalf of third-parties. Consent may be requested by setting up one or more checkboxes that are not pre-selected, not mandatory or coerced (freely given) and accompanied by relevant disclosures that make it clear to the user how his or her data will be used.
How can proof of valid consent be demonstrated unambiguously?
Is the email I receive from the user as a result of filling out a form not sufficient as proof of consent?
Unfortunately, it is not sufficient, as some information necessary to reconstruct the suitability of the procedure for collecting consent is missing, such as a copy of the form actually completed by the user and the version of the privacy documents available to the user at the time the consent was collected.
Do I have to comply with the LGPD even if my organisation is not based in Brazil?
The LGPD has a territorial scope that extends outside of Brazil. This means that you may have to comply even if you or your business are not based in Brazil. Therefore, you fall under the LGPD scope if you process data from individuals located within the Brazilian territory, regardless of their nationality (even if they were in Brazil only at the time of data collection, and have since moved).