Digital Consent and Data Protection Law – Europe and Asia-Pacific Experience

UNSW Law Research Paper No. 20-10

(2020) Information & Communications Technology Law, 12 February

33 Pages Posted: 20 Feb 2020

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Robert Walters

Victoria University

Bruno Zeller

University of Western Australia - Faculty of Law

Date Written: February 7, 2020

Abstract

A serious dilemma for regulators of the Internet is to ensure that data providers secure the informed consent of digital consumers before accessing and transmitting their personal data. This dilemma is complicated by the fact that, while most data consumers value their privacy over their personal data, they readily consent to the use of that data. An economic dilemma for Internet regulators is to recognize the economic costs to data providers of informing data consumers about the nature and consequences of consenting to the use of their personal data, while preventing data users from eroding the privacy of those consumers. In issue, too, is a self-management model in which consent to the use of personal data is managed by data subjects and data users, even if the latter dictate the terms of that usage, contrasted against an external regulatory model in which such consent is subject to legislative and judicial regulation. A further issue relates to the external regulation that oversee how data is managed. This includes a primary framework with which data users must comply. This article will address these issues in the dynamic and evolving sector of data protection across the global economy. It will argue for greater legal consistency and harmonization in the law governing consent to the use of personal data, in defining the nature of that consent, and in devising a regulatory framework that takes account of the cognitive capacities and behaviour of data consumers.

Keywords: informed consent, digital consumers, privacy, data consumers, personal data, data protection

Suggested Citation

Trakman, Leon and Walters, Robert and Zeller, Bruno, Digital Consent and Data Protection Law – Europe and Asia-Pacific Experience (February 7, 2020). UNSW Law Research Paper No. 20-10, (2020) Information & Communications Technology Law, 12 February, Available at SSRN: https://ssrn.com/abstract=3538860 or http://dx.doi.org/10.2139/ssrn.3538860

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Robert Walters

Victoria University ( email )

Melbourne, 8001
Australia

Bruno Zeller

University of Western Australia - Faculty of Law ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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