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

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