Let's Not Get Psyched Out of Privacy: Reflections on Withdrawing Consent to the Collection, Use and Disclosure of Personal Information

Canadian Business Law Journal, Vol. 44

16 Pages Posted: 31 Jul 2010

See all articles by Jennifer Barrigar

Jennifer Barrigar

University of Ottawa - Faculty of Law

Ian R. Kerr

University of Ottawa - Common Law Section

Jacquelyn Burkell

Faculty of Information and Media Studies

Date Written: 2006

Abstract

In this article, the authors investigate PIPEDA's (Canada's private sector privacy law) conception of consent, with special emphasis on the right of individuals to withdraw consent. Instead of viewing consent in isolation, they argue that PIPEDA may be read as providing a framework which aims to build a culture that better understands the importance of privacy protection. Not only do PIPEDA and similar data protection laws around the globe require consent prior to the collection, use, or disclosure of most personal information, the authors suggest that PIPEDA sets a higher threshold for obtaining consent than would be afforded by way of private ordering. Unlike the law of contracts - where consent is seen as a single transactional moment - PIPEDA generally allows the information subject to withdraw consent at any time. On this basis, the authors argue that PIPEDA's consent model is best understood as providing an ongoing act of agency to the information subject that does not treat consent as an isolated moment of contractual agreement during an information exchange.

The authors demonstrate why the transactional approach to consent is wrongheaded through an examination of the psychological barriers to withdrawing consent. They suggest that this inter-disciplinary approach informs a more robust approach to privacy protection in general and to the notion of consent as an act of ongoing agency in particular.

Keywords: privacy, data protection, personal information, consent, withdrawn consent, PIPEDA

Suggested Citation

Barrigar, Jennifer and Kerr, Ian R. and Burkell, Jacquelyn, Let's Not Get Psyched Out of Privacy: Reflections on Withdrawing Consent to the Collection, Use and Disclosure of Personal Information (2006). Canadian Business Law Journal, Vol. 44. Available at SSRN: https://ssrn.com/abstract=1303184

Jennifer Barrigar

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

Ian R. Kerr (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

Jacquelyn Burkell

Faculty of Information and Media Studies ( email )

FIMS and Nursing Building, Rm. 2050
London, Ontario N6A 5B9
Canada
5q9-661-2111 ext 88506 (Phone)

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