The Case for Abolishing Consent in Data Privacy Law

Abstract

Consent in data protection law is highly contentious. Critics argue that enabling people to make their own decisions is not feasible, as people are generally poor decision-makers. However, proponents insist on the value of consent as a tool of empowerment. This Article challenges the foundational assumptions of this debate: that consent is conducive to privacy; that the decision to share one’s data concerns mainly the person sharing them; and that if we were to bridge the gap between the layperson and the ideal decision-maker, we would achieve an optimal level of data privacy protection.

Setting aside these false assumptions, this Article aims to resituate the consent debate in a framework that rests on more solid theoretical ground. First, it connects the economic concept of data externalities with the philosophical idea of the harm principle. This highlights how unilaterally imposing burdens on others, without consideration of their interests, is morally unjustifiable, thereby depriving consent of its normative justification. Second, it examines privacy as a public good, demonstrating that even rational decision-makers are bound to freeride on each other’s data privacy and make everyone worse-off, thereby rendering consent undesirable. Therefore, this Article concludes that we should abolish consent, while retaining individual control over data through data privacy rights.