[emn13]

Consent must specifically be freely given; it's not a valid basis if it's "forced opt in" in a TOS. I'm not sure if there's any jurisprudence here (on exactly what freely given means). Even if consent with a TOS were to be considered freely given (I don't think so, but IANAL), it would still need to be clear, and most TOS fail to clear that hurdle. At best it would be a push, and in principle if the legal basis in invalid, punishments can be just as severe as if you hadn't bothered trying at all (although clearly the enforcement at the moment still appears to give violators a lot of chances to repair any issues; so in practice a seemingly reasonable if invalid attempt might at least buy some temporary reprieve if every enforcement comes knocking).