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How should the EU tackle the issue of effective user consent for data processing?

Publishing date
08 May 2023
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The Digital Markets Act (DMA) became applicable on 2 May. The regulation imposes a list of dos and don’ts on large online platforms (known as ‘gatekeepers’) in some core platform services, like social networking services. In particular, the DMA prevents gatekeepers from collecting and processing personal data unless online users consent under the General Data Protection Regulation (GDPR). In this context, the DMA complements the GDPR by specifying how gatekeepers can request and collect consent. In short, firms must collect consent without misleading practices that steer users to consent, known as ‘dark patterns’.
 
The DMA aims to ensure that users consent to data processing effectively. However, the GDPR has tried to provide this for years. Firms still implement dark patterns and users are facing consent fatigue due to encountering repeated consent banners. The DMA might not ensure effectiveness. Indeed, it could increase the number of consent requests and information, leading to more consent fatigue and information overload, which could prevent users from making effective choices.
 
The European Commission cannot dictate how gatekeepers will comply with this obligation. However, it can order them to show that their compliance measures are effective in their compliance reports. They should request that gatekeepers provide an independent behavioural study that examines the consent banners and users’ choice patterns. In parallel, with the help of other European regulators, the European Commission should study how users perceive and interact with consent banners and how the DMA interacts with other legal regimes, including data protection laws.

 

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About the authors

  • Christophe Carugati

    Dr. Christophe Carugati is an affiliate fellow at Bruegel on digital and competition issues.

    He holds a Doctor in Law and Economics on Big Data and Competition Law from Paris II University, a Master in Law Economics from the European Master in Law and Economics (EMLE, University of Bologna, Hamburg, and Vienna), a master in Business Law from Aix-Marseille University, and a double Bachelor in Law and Economics from Toulouse School of Economics (TSE). His academic research focuses on the adaption of competition law to the data-driven economy and the regulation of platforms.

    He teaches a competition law seminar at Lille University to master students. Before joining Bruegel, he was a senior policy analyst at the US technology think-tank The Center for Data Innovation, where he worked on digital issues. He also has some experience in practicing competition law in the context of internships in law firms in Paris.

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