Collaborative consent: Harnessing the strengths of the Internet for consent in the online environment

Abstract

Consent in the online environment is a crucial issue at this stage of the development of the Internet, and at the same time, in practice it is generally dealt with only on a superficial level. However, while the Internet offers significant challenges in terms of consent, it also provides unparalleled opportunities, which, if grasped, could enable a new level of consent, particularly where consent is required for services such as behavioural advertising systems. Through an examination of the failure of Phorm, the paper introduces a new concept, ‘collaborative consent’, treating consent not as a discrete, one-off decision but as a collaborative and communicative process, an ongoing relationship between the individual and the enterprise. The Internet provides a medium for immediate and interactive communication that could allow information to be given and choices to be made in real time – a first step to real, informed consent in the online world.

Keywords:

• consent
• Internet
• behavioural advertising

Acknowledgements

This paper is based on research for my doctorate funded by the Arts and Humanities Research Council.

Notes

This theory is described in more detail in P. Bernal, ‘Web 2.5: The Symbiotic Web’, International Review of Law, Computers & Technology 24 (2010): 25–37.

First of all in R. Clayton, ‘The Phorm “Webwise” System’, (2008). http://www.cl.cam.ac.uk/~rnc1/080518-phorm.pdf (accessed 8 May 2010), and then continuing analsyses in Clayton's blog on http://www.lightbluetouchpaper.org/ (accessed 8 May 2010).

N. Bohm, ‘The Phorm “Webwise” System – a Legal Analysis’, Foundation for Information Policy Reseach, Sandy, Bedordshire, UK, 2008.

See http://www.out-law.com/page-10929 (accessed 8 May 2010). The new terms and conditions included: ‘By placing an order via this website on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant us a non transferable option to claim, for now and for ever more, your immortal soul’.

For the European Action see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/570&format=HTML&aged=0&language=EN&guiLanguage=en (accessed 8 May 2010), the OFT investigation see http://www.guardian.co.uk/media/2009/aug/20/internet-targeted-advertising-oft-investigation (accessed 8 May 2010), and the apComms report see http://www.apcomms.org.uk/uploads/apComms_Final_Report.pdf (accessed 8 May 2010).

See for example http://www.concurringopinions.com/archives/2009/09/facebook-settles-beacon-lawsuit.html (accessed 8 May 2010).

For example in ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) and Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001).

Thornton v. Shoe Lane Parking Ltd [1971] 2 QB 163, referring to Parker v. South Eastern Railway Co. [1877] 2 CP 416, McCutcheon v. David McBrayne Ltd [1964] 1 W.L.R. 125, Watkins v. Rymill [1833] 10 QB 178,188 and Thompson v. London, Midland and Scottish Railway Co. [1930] 1 KB 41, 47.

See Working Party on the protection of individuals with regard to the processing of personal data (‘the Article 29 Data Protection Working Party’), Brussels, Opinion 148, p. 17.

http://www.google.co.uk/privacypolicy.html (accessed 8 May 2010).

J. Turow, J. King, C.J. Hoofnagle, A. Bleakley and M. Hennessy, ‘Americans Reject Tailored Advertising’. Annenberg: University of Pennsylvania, 2009.

H. Teff, Reasonable Care: Legal Perspectives on the Doctor–Patient Relationship (Oxford: Oxford University Press, 1994), 198.

A.D. Murray, The Regulation of Cyberspace: Control in the Online Environment (Abingdon, UK: Routledge, 2006), particularly Ch. 8.

The Information Commissioner's Office (ICO) Privacy Notices Code of Practice, p. 9, downloadable from http://www.ico.gov.uk/for_organisations/topic_specific_guides/privacy_notices.aspx (accessed 8 May 2010).

The Google dashboard is accessed through the Google Privacy Center (http://www.google.com/privacy.html, accessed 8 May 2010). For a brief discussion of how it works, see http://googlesystem.blogspot.com/2009/11/google-dashboard.html (accessed 8 May 2010). For Google Ads Preferences see http://www.google.com/ads/preferences (accessed 8 May 2010).