A European perspective on data processing consent through the re-conceptualization of European data protection’s looking glass after the Lisbon Treaty: Taking rights seriously

Abstract

EU data protection law is undergoing a process of reform to meet the challenges of the modern economy and rapid technological developments. This study re-conceptualizes data protection in the EU in light of the enactment of the Treaty of Lisbon and the Charter of Fundamental Rights of the EU. It focuses on data subjects' consent as a key component of data processing legislation - alongside the principles of purpose specification and data quality - to reinforce the view that it is a necessary, though not sufficient, tool to guarantee the declared high level of protection of individuals. To prevent confusion, conflation, or abuse of consent and safeguard the fundamental values to which it is tied, this paper puts forward that additional legal constraints and qualifications would be necessary for the enhancement of its application and enforcement. Soft or libertarian paternalism may be the key to nudge individuals towards the desired social outcome while preserving their individual autonomy. The ultimate suggestion is that EU policy makers should take rights seriously and not be seduced by and surrender to conflicting economic interests.