The crisis of consent: how stronger legal protection may lead to weaker consent in data protection

In this article we examine the effectiveness of consent in data protection legislation. We argue that the current legal framework for consent, which has its basis in the idea of autonomous authorisation, does not work in practice. In practice the legal requirements for consent lead to ‘consent desensitisation’, undermining privacy protection and trust in data processing. In particular we argue that stricter legal requirements for giving and obtaining consent (explicit consent) as proposed in the European Data protection regulation will further weaken the effectiveness of the consent mechanism. Building on Miller and Wertheimer’s ‘Fair Transaction’ model of consent we will examine alternatives to explicit consent.