‘Click Here to (Dis)Agree’: Australian Law and Practice in Relation to Informed Consent

Abstract

This article provides a detailed examination of issues with the legislative framework meeting consumer expectations in relation to informed consent, particularly in relation to the Privacy Act 1988 (Cth) and the Australian Consumer Law. It also discusses two potential areas that might assist in fleshing out the current minimalist legislative definition of consent: namely case law and guidelines issued by the Australian privacy regulator, the Office of the Australian Information Commissioner (the OAIC Guidelines). However the case law available in this area is sparse and provides little guidance. Additionally, the non-binding OAIC Guidelines, while referred to frequently in privacy determinations, appear to have little real effect in influencing the data practices of many firms. The article concludes that the current approach to regulating ‘consent’ has not provided adequate protections for consumers in light of extensive empirical evidence regarding consumer privacy preferences and attitudes regarding data practices.

Keywords: data protection, privacy, informed consent