Abstract
Consent under pressure and the Right to Informational Self-Determination
Highlights
The concept of consent is deeply entrenched in the German constitution's right to informational self-determination, which is itself part of the general right to personality (Art. 2 (1) in conjunction with Art. 1 (1) GG)
The ideal of a well-informed consent itself as well as our notion of voluntariness of consent are under considerable pressure
Not primarily the financial capacities of the parties are put at risk but the general right of personality
Summary
It is anything but new that parties of modern day legal relations find themselves facing contractual terms which due notice is highly unproportional to the significance of the contract. The use of personal data largely eludes precise peremptory norms and while being reversible by cancellation in theory, this is hardly controllable in practice These facts especially apply when it comes to accessing online communication platforms. While data protection acts have a rather general design and allow almost all kinds of possible data use, the laws on the admissibility of terms and conditions are not tailored to protect the right to informational self-determination This has serious consequences: Users have poor knowledge mainly shaped by hearsay, which results in insecure online behaviour. Contrary to the constitutional and statutory ideal it remains obscure to (almost) all users for what exact purposes personal data can be used This may be countered by arguing that every responsible user has it in his own capacity to inform himself properly about the use of his data when signing up for a service. Consumers, who are used to enjoying extensive warranty and cancellation rights with almost every purchase order, will often assume that they do not have to act overcautiously online as well
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