The Failure of 'Notice and Consent' as Effective Consumer Policy

10 Pages Posted: 23 Aug 2019

See all articles by James P. Nehf

James P. Nehf

Indiana University Robert H. McKinney School of Law

Date Written: August 21, 2019

Abstract

Over the past several decades, the preferred model for consumer protection in most countries has emphasized a notice and consent (or choice) approach with less emphasis on normative laws that prohibit or mandate certain contract terms, acts or practices. In this essay, I argue that it is time for consumer advocates and policy makers to recognize that a notice and consent approach to standard contract terms and conditions is not likely to protect consumer interests in modern day contractual settings. Indeed, policy makers are doing more harm than good by continuing to focus on notice and consent, thereby giving a misleading impression that consumer interests are being protected when they are not. Moreover, by adhering to a notice and consent regime, they avoid discussing the more difficult yet most fundamental questions about what commercial practices should be permitted and which should be banned.

Keywords: privacy, consumer law, contracts, terms and conditions, standard terms, notice and choice, notice and consent

Suggested Citation

Nehf, James P., The Failure of 'Notice and Consent' as Effective Consumer Policy (August 21, 2019). Available at SSRN: https://ssrn.com/abstract=3440816 or http://dx.doi.org/10.2139/ssrn.3440816

James P. Nehf (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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