Consumer data protection: Pursuing data subject autonomy through design regulation

TY - JOUR

T1 - Consumer data protection: Pursuing data subject autonomy through design regulation

AU - Keller, Perry

N1 - Perry Keller is Reader in Media and Information Law (associate professor) at the School of Law, King’s College London.

PY - 2023/11/15

Y1 - 2023/11/15

N2 - The arrival of the commercial internet brought a revolution in consumer opportunities as well as novel risks of deception and manipulation. While EU consumer law was initially not well prepared to regulate free services funded by targeted advertising, data protection was better equipped for this task. In the consumer sphere, it offered a highly flexible regulatory model centred on informed individual choice, underpinned by a core principle of fairness and directly rooted in European fundamental rights. In the event, the goal of consumer empowerment through data protection remains on the horizon. Online user interfaces continue to evolve in ways that often confuse and sometimes mislead consumers. While the capacities of consumers to navigate complex digital environments, even when designed fairly, seem close to exhaustion. Consumer decision making is therefore frequently intuitive or even emotive, falling far short of the ideal of informed deliberation. In response, consumer data protection law has increasingly pursued design regulation. Paradoxically, these efforts have tended to accept the limitations of consumer decision making, seeking policy ends by harnessing the intuitions of overwhelmed consumers, such as their mass preference for clicking “reject” rather than “accept” on cookie popups. The conundrum of this shallow autonomy at the heart of contemporary consumer data protection law will, however, not be easily resolved. The conflation of informational self-determination and the individual exercise of rights is embedded in EU digital constitutionalism. Nonetheless, solutions will be found. Services offered to consumers will be more closely regulated to reduce potential harms and consumers will have more opportunities to delegate their choices to trusted intermediaries.

AB - The arrival of the commercial internet brought a revolution in consumer opportunities as well as novel risks of deception and manipulation. While EU consumer law was initially not well prepared to regulate free services funded by targeted advertising, data protection was better equipped for this task. In the consumer sphere, it offered a highly flexible regulatory model centred on informed individual choice, underpinned by a core principle of fairness and directly rooted in European fundamental rights. In the event, the goal of consumer empowerment through data protection remains on the horizon. Online user interfaces continue to evolve in ways that often confuse and sometimes mislead consumers. While the capacities of consumers to navigate complex digital environments, even when designed fairly, seem close to exhaustion. Consumer decision making is therefore frequently intuitive or even emotive, falling far short of the ideal of informed deliberation. In response, consumer data protection law has increasingly pursued design regulation. Paradoxically, these efforts have tended to accept the limitations of consumer decision making, seeking policy ends by harnessing the intuitions of overwhelmed consumers, such as their mass preference for clicking “reject” rather than “accept” on cookie popups. The conundrum of this shallow autonomy at the heart of contemporary consumer data protection law will, however, not be easily resolved. The conflation of informational self-determination and the individual exercise of rights is embedded in EU digital constitutionalism. Nonetheless, solutions will be found. Services offered to consumers will be more closely regulated to reduce potential harms and consumers will have more opportunities to delegate their choices to trusted intermediaries.

KW - data protection

KW - consumer protection

KW - targeted advertising

KW - design regulation

KW - nudge

KW - autonomy

M3 - Article

SN - 0775-3209

VL - 2024

SP - 55

EP - 75

JO - European Journal of Consumer Law

JF - European Journal of Consumer Law

IS - 1

M1 - 3

ER -