Consent and lawful basis
Can I use pre ticked consent boxes?
- Short answer
- No. Consent must be given by a clear affirmative action, and a box already ticked when the page loads involves no action by the user. It is also a recognised dark pattern, so it fails both the consent test and the fairness expectation.
The Act sets a high bar deliberately. Consent must be free, specific, informed, unconditional and unambiguous, signified by a clear affirmative action, and limited to the data necessary for the stated purpose.
A pre ticked box fails on the affirmative action requirement alone. Bundling several purposes behind one tick fails on specific, because the person cannot agree to one purpose and refuse another.
Remember also that in any proceeding, the burden of proving that notice was given and consent obtained sits on you. A design that makes acceptance easy and refusal hard is difficult to defend under that burden.
Where this comes from
- Section 6(1) and Section 6(10), DPDP Act 2023
The mistake people make
Bundling marketing consent with terms acceptance behind a single tick, so agreeing to use the service also agrees to marketing.