The Role of Consent in an Algorithmic Society – Its Evolution, Scope, Failings and Re-conceptualization
n. In: Kostas, E., Leenes, R., & Kamara, I (2022) Research Handbook on EU data protection. Edward Elgar Publishing, 455–473, https://doi.org/10.4337/9781800371682.00027
22 Pages Posted: 25 Jan 2023
Date Written: January 20, 2022
Abstract
In this chapter, we address the role of consent in data protection law by explaining first how consent came to existence. Taking a historical perspective, we explain how the concept evolved in different countries, across various pieces of legislation, and for different data subjects, including children. Then, we look at the EU level how consent was established in Directive 95/46/EC and the General Data Protection Regulation and explore its scope and what consent entails by looking at the rulings from the Court of Justice of the European Union, the previously called Article 29 Working Party (WP29) opinions, and the newly issued guidelines by the European Data Protection Board.9 Building upon the rich body of scholarship that has stressed and focused on the failure of consent, we tie this narrative into the past, present, and future so as to explain why consent has persisted over time to be widely used today and why it is likely to continue to be a central pillar of data protection law. We conclude this chapter by explaining the rationale behind the role of consent in an increasingly algorithmic society. In this respect, we describe the purpose consent serves in a hyper-connected society and explore its quo vadis by assessing recent proposals concerning interactive, dynamic consent models, which are already used in research and shared-economy business models.
Keywords: consent, GDPR, data protection law, WP29, informed consent, unambiguous consent, explicit consent
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