Court of Appeal rules consent is objective

In an article on his personal blog, data protection specilaist jon Baines examines a significant Court of Appeal judgment in RTM v Bonne Terre Ltd & Anor, clarifying the legal definition of consent in UK data protection and ePrivacy law. The judgment overturns a February 2025 High Court ruling that introduced a subjective element into consent, which left many businesses, particularly in the betting and gaming sector, facing high levels of legal uncertainty.

The High Court had previously ruled that a claimant's consent was invalid because his compulsive gambling behaviour meant he lacked the subjective capacity to provide consent that was freely given, specific, informed, and unambiguous, despite his actions suggesting otherwise.

Baines highlights that the original judgment suggested businesses were responsible for a data subject's actual state of mind, creating an ineradicable risk if a user was subjectively incapable of giving valid consent. Lord Justice Warby rejected this approach, confirming that the test for consent is objective. He held that a data controller is required to demonstrate that a subject took a clear affirmative action signifying agreement and that this indication met the statutory criteria. 

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