Construing the Meaning of 'Opt-Out': An Analysis of the European, U.K. and German Data Protection Legislation

23 Pages Posted: 12 Aug 2015

See all articles by Eleni Kosta

Eleni Kosta

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Tilburg Law School

Date Written: March 2015

Abstract

The definition of consent in the Data Protection Directive refers to “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. This paper wishes to clarify the concept of “opt-out” and explain whether it should be linked to the concept of implicit consent or that of the right to object. The discussion around opt-in and opt-out consent has been rigorous in relation to the processing of personal data for direct marketing purposes. Therefore, the paper will examine the relevant provisions of the Data Protection Directive and the ePrivacy Directive, which regulate direct marketing, as well as the national implementations in the UK and Germany. Through this comparative analysis the paper will clarify the misconceptions surrounding the practice of “opt-out” concluding that any reference to the so-called “opt-out” consent, as is commonly the case in the U.K., is incorrect, and that “opt-out” refers to an opportunity to object.

Keywords: consent, opt-in, opt-out, data protection, direct marketing, EU

Suggested Citation

Kosta, Eleni, Construing the Meaning of 'Opt-Out': An Analysis of the European, U.K. and German Data Protection Legislation (March 2015). Tilburg Law School Research Paper . Available at SSRN: https://ssrn.com/abstract=2642321 or http://dx.doi.org/10.2139/ssrn.2642321

Eleni Kosta (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law School

Tilburg, 5000 LE
Netherlands

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