Construing the Meaning of 'Opt-Out': An Analysis of the European, U.K. and German Data Protection Legislation

Abstract

The definition of consent in the Data Protection Directive refers to “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. This paper wishes to clarify the concept of “opt-out” and explain whether it should be linked to the concept of implicit consent or that of the right to object. The discussion around opt-in and opt-out consent has been rigorous in relation to the processing of personal data for direct marketing purposes. Therefore, the paper will examine the relevant provisions of the Data Protection Directive and the ePrivacy Directive, which regulate direct marketing, as well as the national implementations in the UK and Germany. Through this comparative analysis the paper will clarify the misconceptions surrounding the practice of “opt-out” concluding that any reference to the so-called “opt-out” consent, as is commonly the case in the U.K., is incorrect, and that “opt-out” refers to an opportunity to object.