Reflections on Withdrawing Consent to the Collection, Use and Disclosure of Personal Information

In this article, co-authored by myself, Jennifer Barrigar and Jacquelyn Burkell, we investigate PIPEDA’s (Canada’s private sector privacy law) conception of consent, with special emphasis on the right of individuals to withdraw consent. Instead of viewing consent in isolation, we read PIPEDA as providing a framework which aims to build a culture that better understands the importance of privacy protection. Not only do PIPEDA and similar data protection laws around the globe require consent prior to the collection, use, or disclosure of most personal information, we suggest that PIPEDA sets a higher threshold for obtaining consent than would be afforded by way of private ordering.  Unlike the law of contracts – where consent is seen as a single transactional moment – PIPEDA generally allows the information subject to withdraw consent at any time. On this basis, we argue that PIPEDA’s consent model is best understood as providing an ongoing act of agency to the information subject that does not treat consent as an isolated moment of contractual agreement during an information exchange.

We try to demonstrate why the transactional approach to consent is wrongheaded through an examination of the psychological barriers to withdrawing consent. In our view, this inter-disciplinary approach  informs a more robust approach to privacy protection in general and to the notion of consent as an act of ongoing agency in particular.

A copy of this article is available for download  here 222.42 Kb © 2006.