It's the 'opt-out' shake-it-all-about

Jan 21, 2013

Soon unscrupulous organisations and businesses may no longer be able to claim that consumers have given their consent to have their personal data collected, stored, manipulated and used for advertising, marketing or other purposes simply because they failed to notice that greedy companies have automatically "pre-ticked' various 'permission' boxes and so conferring upon themselves permission to use private personal data belonging to other who are unaware that they are being exploited for commercial gain.

A new report, authored by Jan-Phillipe Albrecht of the European Parliament's Civil Liberties, Justice and Home Affairs Committee on proposed EU data protection reforms, says that consumers in the EU's 27 Member States should not be forced to have to opt out from automatic settings to prevent commercial and other organisations deeming that consent by default has been give.

The report lists likely changes to the draft General Data Protection Regulation that the European Commission (EC) published a year ago, in January 2012. The mills of the EC do grind slow, but they also grind exceeding small.

So, the EU intends strongly to sharpen data protection legislation to ensue that companies requiring and/or relying upon an individual's consent to gather and process their personal data will be legally required to ascertain and ensure that any such consent is "freely given, specific, informed and obtained through a statement or clear affirmative action". This means the days of those "pre-ticked" boxes that users have to "untick" to avoid having their data sneakily vacuumed-up and turned into advertising fodder are, at long last, numbered.

Jan-Phillipe Albrecht says, "To ensure free consent, it should be clarified that consent does not provide a valid legal ground where the individual has no genuine and free choice and is subsequently not able to refuse or withdraw consent without detriment. The use of default options which the data subject is required to modify to object to the processing, such as pre-ticked boxes, does not express free consent."

The proposed data protection changes will have a particular effect on commercial enterprises that have a dominant market position as, henceforth, they will have to abide by much more swingeing regulations relating to "consent".

Essentially, firms that "disadvantage consumers" as a result of a "clear imbalance" due to a dominant market position, will not be allowed to make "unilateral and nonessential" changes to contractual terms where consumers have "no option other than to accept the change or abandon an online resource in which they have invested significant time".

Now that could have some far-reaching effects.

Many organisations currently take refuge behind claims that data gleaned from individuals who have failed to notice that they are required to exercise an 'opt-out is "anonymised" and therefore no more than a blunt and innocuous marketing tool. The EU will move to tighten legislation to ensure that all such data truly is anonymised and the onus will be upon organisations, of every strip, that collect and manipulate user data to prove that the said dat is properly, completely and permanently 'anonymised."

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