Amendment #13 to S2619

Strengthening the Definition of Affirmative Consent 

Ms. Sabadosa of Northampton moves to amend the bill by striking lines 15-23 in Section 1, and by inserting the following in its place:

“Affirmative Consent” means a clear affirmative act signifying a consumer's freely given, specific, informed and unambiguous authorization for an act or practice after having been informed, in response to a specific request from a controller, provided that:

(i) the request is provided to the consumer in a clear and conspicuous stand-alone disclosure;

(ii) the request includes a description of the processing purpose for which the consumer’s consent is sought and:

(A) clearly distinguishes between an act or practice that is necessary to fulfill a request of the consumer and an act or practice that is for another purpose;

(B) clearly states the specific categories of personal data that the controller intends to collect, process, transfer, or sell under each act or practice; and

(C) is written in easy-to-understand language and includes a prominent heading that would enable a reasonable consumer to identify and understand each act or practice;

(iii) the request clearly explains the consumer's rights related to consent;

(iv) the request is made in a manner reasonably accessible to and usable by consumers with disabilities;

(v) the request is made prior to the controller’s implementation of the act or practice;

(vi) the request is made available to the consumer in each language in which the controller provides a product or service for which authorization is sought;

(vii) the option to refuse to give consent is at least as prominent as the option to give consent and the option to refuse to give consent takes the same number of steps or fewer as the option to give consent; and

(viii) affirmative consent to an act or practice is not inferred from the inaction of the consumer or the consumer's continued use of a service or product provided by the controller.

“Affirmative Consent” does not include:

(i) acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information;

(ii) hovering over, muting, pausing or closing a given piece of content;

(iii) agreement obtained through the use of a false, fraudulent, or materially misleading statement or representation; or

(iv) agreement obtained through the use of dark patterns.

Additional co-sponsor(s) added to Amendment #13 to S2619

Strengthening the Definition of Affirmative Consent