Pre-formulated Declarations of Data Subject Consent—Citizen-Consumer Empowerment and the Alignment of Data, Consumer and Competition Law Protections

• Published in: German law journal Vol. 20; no. 5; pp. 679 - 721
• Main Authors: Clifford, Damian, Graef, Inge, Valcke, Peggy
• Format: Journal Article
• Language: English
• Published: Toronto Cambridge University Press 01.07.2019
• Subjects: Accountability; Competition; Competition policy; Consent; Consumer protection; Data; Data integrity; Declarations; Dominance; Empowerment; General Data Protection Regulation; Imbalance; Law; market dominance; personal data; Principles; Privacy; Transparency; unfair terms
• ISSN: 2071-8322; 2071-8322
• DOI: 10.1017/glj.2019.56

One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.