Re: Taxonomy of legal bases

tldr; This email is regarding using two separate legal basis for consent 
as provided by A6(1)(a)

Dear Eva, Rigo, and Bud.
I'm having trouble understanding the two separate legal basis for 
consent as provided by A6(1)(a).
This discussion was mostly conducted in the F2F, and because this is the 
first time I have come across this interpretation of two legal basis 
under A6(1)(a), it would be good to have it in the mailing list so as to 
have a point of reference in the future.

My understanding of the discussion so far:
Please do specify (and if possible, correct) any errors made in 
capturing the gist of the discussion.
For consent as the legal basis, Eva and Bud suggested 
(https://lists.w3.org/Archives/Public/public-dpvcg/2019Apr/0005.html 
1-APR) two types ('regular' and 'explicit') of consent from Article 
6(1)(a), with a reference to A29WP guidelines on consent - that also 
mention these two terms.
Rigo (skype call in F2F, 4-APR) suggested to remove the word 'regular' 
and simply call it consent, and provided the following definition for 
(previously regular) consent - "A data subject's unambigious/clear 
affirmative action that signifies an agreement to process their personal 
data". (personal opinion - I think this was to provide a definition of 
'consent' as a top-level concept in the taxonomy)

Points I'm struggling with -

(1) If the (regular) consent is used as a legal basis with the above 
definition - would it be valid under the GDPR given that it does not 
follow the definition of consent (A4-11) for being "freely given, 
informed".

(2) Where do we use the GDPR definition of consent (A4-11) in the 
taxonomy for legal basis of A6(1)(a) - 'regular' or 'explicit'?

(3) In the guidelines for consent by A29WP (Sec.4, pg.18), 'regular' 
consent is mentioned in context - The GDPR prescribes that a “statement 
or clear affirmative action” is a prerequisite for ‘regular’ consent.
In the same section, 'explicit' consent is mentioned as - "The term 
explicit refers to the way consent is expressed by the data subject. It 
means that the data subject must give an express statement of consent."
Given that I have no legal background, I'm confused as to wouldn't every 
'regular' consent required by GDPR also be 'explicit' given the 
requirement for every consent to be informed, specific, unambiguous 
indication by a statement or action (A4-11) - which covers descriptions 
of both terms by A29WP?
Or, is the difference as follows:
- regular - saying "I Agree"
- explicit - saying "I Agree to XYZ" ← note explicit mention of what I'm 
agreeing to?
But wouldn't this be covered by the information in the description of 
what they are agreeing to because consent should be informed?. It does 
come to my mind, that the 'explicit' in this case may refer to the 
requirement of stating that some information, such as special categories 
of data, need to be mentioned in an 'explicit' form in the 'informed' 
part of consent - in which case, does it qualify as a separate legal 
basis OR as the requirements for valid consent (and therefore not part 
of legal basis taxonomy)?

(4) If conditions provided by A9(2)(a) count as a legal basis based on 
'explicit' consent for special categories of personal data, do the 
following also count as a legal basis given that they are based on 
'explicit' consent and are types of processing?
- R72 Profiling
- A22(2)(c) Automated individual decision-making, including profiling
- A49(1)(a) transfers of personal data to a third country or an 
international organisation

I don't mean to start a long discussion that may delay the work on 
wrapping up the taxonomy, so am willing to accept short answers (e.g. 
yes/no, use 'this' as definition); but at the same time it would be very 
helpful to clarify this things - both for the group as well as 
(personally) for my PhD work.

Best,
Harsh

On 01/04/2019 14:36, Eva Schlehahn wrote:
>
> Dear all,
>
> Bud and I developed further the taxonomy of legal bases according to 
> the GDPR. Please find attached
>
>   * in the Word document file Bud's version of such a vocabulary, as
>     well as
>   * in the image file my extension of the already existing
>     visualization from lawyer perspective. ;-)
>
> A pity I cannot make it to Vienna. I wish you all a fruitful meeting 
> there. :-)
>
> Greetings,
>
> Eva
>
> -- 
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-- 
---
Harshvardhan Pandit
PhD Researcher
ADAPT Centre
Trinity College Dublin