When Explicit Consent Is Invalid Under KVKK: The Board's New Approach

⏱️ Reading time: 12 min · 📁 Category: KVKK & explicit consent Management

When Explicit Consent Is Invalid Under KVKK: The Board's New Approach

Throughout 2025, the KVKK Board repeatedly stressed this principle:
explicit consent is valid only when genuinely freely given.
After finding that consents in many sectors were not legally valid, the Board
substantially tightened both implementation guidance and audit standards.

The main reason for this is that explicit consent begins to be used as an incorrect "easy way" in areas that are not required for data processing.

The Board’s clearest message in 2025: Explicit consent is invalid when given under a sense of compulsion. 1. Basic Situations Where explicit consent Is Invalid

According to the KVKK, there are three basic criteria for the validity of explicit consent:

• It must be specific
• It should be based on information
• It must be freely given

If any one of these criteria is missing, consent is invalid.

Common scenarios the Board considers invalid:

• Offering consent as a prerequisite for service
• Restricting service access for people who do not consent
• Obtaining approval for multiple processing operations through one checkbox
• Requesting consent through unclear or incomprehensible texts
• Force consent with pressure elements such as "you can't register", "you can't use"

Consent presented as compulsory is not genuine explicit consent. 2. The Board’s 2024–2025 decisions: where was invalid consent most common?

The Board's recent decisions were particularly concentrated in three sectors:

1) Marketing & Advertising Processes

• Combining communication permissions with registration or appointment booking
• Requesting mandatory consent for the campaign
• Bundled consent checkboxes

2) Cookie Policies & Digital Tracking

• By default, analysis and advertising cookies are selected
• Prominent accept button with a hidden reject option
• Cookie walls offering only one option

3) Employee Data

• Obligation of explicit consent for performance monitoring
• Mandatory consent for location/GPS tracking
• Acceptance that consent is not free due to employer-employee power imbalance

According to the Board, explicit consent in employer–employee relationships is usually considered invalid. 3. Compulsion versus voluntariness: the Board’s new approach

The most disputed aspect is what happens to someone who does not consent.

The test the board uses in its New Year's assessment:

• Can the service be provided without consent?
• Does the person who does not consent fall into a disadvantaged position?
• Is the user punished if consent is withdrawn?

If one of these three questions is "yes", consent is invalid.

Examples:

• Unable to track a parcel without SMS permission → invalid consent
• Unable to sign into a banking app without marketing permission → invalid consent
• Employee forced consent to GPS tracking -> invalid consent

Rule: if someone is penalised for refusing consent, it is not consent. 4. Year-end assessment: the errors most frequently audited

Deficiencies prominent in audit reports published by the Board at the end of 2025:

• Request multiple permissions in one box (e.g. SMS + email + commercial message)
• Manipulative button placement in cookie banner
• Making essential services conditional on consent
• Confusing explicit consent with a privacy notice
• Failing to apply consent withdrawal within the system

The most common statement in the end-of-2025 reports: The consent text is neither specific nor clear and does not reflect free will. 5. In What Situations Can explicit consent Be Used In No Way? 1) Employer–employee relationships

• Consent is seen as "dependent" due to a power imbalance in the work relationship.

2) Compulsory service components

• Data processing that is mandatory for the service to be provided should be based on legal reason

3) Profile creation and personalization

• The Board considers that profiling should be restricted even where explicit consent exists.

4) Security monitoring

• CCTV, GPS, and screen monitoring can be done with legitimate interest or legal obligation, not by explicit consent.

The era of treating explicit consent as legalising everything is over; after 2025, its use is limited to narrow circumstances. 6. Preparing for 2026: How Should Businesses Organise Explicit Consent Processes?

• Using explicit consent only for "non-alternative and voluntary" transactions
• Separating consent boxes transaction-based (SMS / email / marketing / profiling)
• Ensure consent withdrawal is automatically applied in the system
• Clarify the distinction between privacy notices and consent texts
• Preparing DPIA in profiling processes
• Updating cookie policy + CMP infrastructure

Conclusion: Explicit consent is no longer a shortcut: it is a narrow exception subject to strict conditions.

Explicit consent compliance assessment