Abstract
Applications of algorithmically informed decisions are becoming entrenched in society, with data processing being their main process and ingredient. While these applications are progressively gaining momentum, established data protection and privacy rules have struggled to incorporate the particularities of data-intensive information societies. It is a truism to point out the resulting misalignment between algorithmic processing of personal data and the data protection regulatory frameworks that strive for meaningful control over personal data. However, the challenges to the (traditional) role and concept of consent are particularly manifest. This article examines the transformation of consent models in order to assess how the concept and the applied models of consent can be reconciled so as to correspond not only to the current regulatory landscapes but also to the exponential growth of algorithmic processing technologies. This particularly pressing area of safeguarding a basic aspect of individual control over personal data in the algorithmic era is interlinked with practical implementations of consent in the technology used and with adopted interpretations of the concept of consent, the scope of application of personal data, as well as the obligations enshrined in them. What makes consent effective as a data protection tool and how can we maintain its previous glory within the current technological challenges?
Highlights
Over the last decade, algorithmic dominance has transformed both individual and collective activities by making data collection and processing ubiquitous, altering foundational decision-making processes
Current applications of consent in the algorithmic processing technological reality escape the confines of individual autonomy and empowerment within a modern society
We have shown the progression of different solutions to this disconnect between consent and algorithmic data processing
Summary
Algorithmic dominance has transformed both individual and collective activities by making data collection and processing ubiquitous, altering foundational decision-making processes. Control over data refers inter alia to individual agency, autonomy, and the ability to make rational choices based on the evaluation of the information provided about the use of the personal data.. As a matter of fact, consent in the GDPR constitutes one of the legal grounds for personal data processing (Art. 6 GDPR) provided that the expression of the consent presents the characteristics that depict the agency of the data subject (Art. 7 GDPR). While article 2(a) of the Data Protection Directive 95/46/EC describes a freely given, specific and informed consent, the GDPR has set up a stricter formulation that requires consent to be explicit for the processing of special categories of personal data. If the reframing of consent in data protection rules has been instrumental in ensuring the continuous enhancement of the expression of user autonomy and control, new technologies are challenging its limits. Consent faces a new challenge, requiring its adaptation by taking in consideration the particularities of the technology at hand.
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