GDPR data consent is “fiction”, according to a Bruegel study

Brussels – The consent banners for personal data required under the General Data Protection Regulation (GDPR) are, in practice, “a legal and technical fiction,” according to a working paper of the Bruegel think tank signed by senior researcher Bertin Martens. 

According to the study, the GDPR requires consent to be freely given, specific, informed, and unambiguous. However, it prescribes no technical standards for consent tools, leaving publishers and advertisers free to design them independently. However, they often exploit users’ “consent fatigue” and resort to misleading designs to pressure them into agreeing to data sharing, to the extent that very few tools are fully compliant with the regulation.

The problem, the paper explains, goes beyond a lack of transparency: even a perfectly transparent and impartial consent mechanism could not tell citizens how the sharing of their data will affect their well-being, because the entities that collect it aggregate and analyse it in ways that individuals cannot predict or assess, making truly “informed” consent effectively impossible. 

The study also highlights the social costs associated with reduced data sharing, including reduced market transparency, greater concentration amongst data brokers, app market exits and higher prices, whilst acknowledging that the overall effects on collective well-being remain controversial. As for the policy responses proposed so far by the European Union, such as automatic opt-out signals at browser level, the paper considers them useful for reducing the costs of consent, but not for improving the information provided to citizens. The study, however, suggests that artificial intelligence agents acting on behalf of users could in the future shift bargaining power from attention-based advertising towards genuine competition on the quality of online services, thereby resolving the “consent fiction” — but only on condition that such agents are truly neutral and not influenced by commercial interests.