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RE: Taxonomy of legal bases

From: Joss Langford <joss@coelition.org>
Date: Mon, 8 Apr 2019 18:37:22 +0000
To: "Mark @ OC" <mark@openconsent.com>, Bud Bruegger <uld613@datenschutzzentrum.de>
CC: "Harshvardhan J. Pandit" <me@harshp.com>, Eva Schlehahn <uld67@datenschutzzentrum.de>, Rigo Wenning <rigo@w3.org>, "public-dpvcg@w3.org" <public-dpvcg@w3.org>
Message-ID: <89368767c3de4297ae9bc16c61cfc039@SEHSTE15D5BE4.hs20.net>
Standing on the side-lines of this discussion…

If we acknowledge something called ‘regular consent’, we imply the existence of ‘irregular consent’. And I really don’t think that is going to work.



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From: Mark @ OC <mark@openconsent.com>
Sent: 08 April 2019 19:30
To: Bud Bruegger <uld613@datenschutzzentrum.de>
Cc: Harshvardhan J. Pandit <me@harshp.com>; Eva Schlehahn <uld67@datenschutzzentrum.de>; Rigo Wenning <rigo@w3.org>; public-dpvcg@w3.org
Subject: Re: Taxonomy of legal bases

Hi Bud,

When I first talked about his work in this group I raised this issue, that consent in the GDPR is not 100% operational, and we can get the farthest be focusing on explicit consent.

I honestly think that Article 29WP went out of their way not to name it.  In such a circumstance, consent become prior art, or common law, aka cultural.  I think the word ‘regular; is not usable as a consent type and believe reading to deeply here is causing the issue.

I would caution this CG in terms of having such a narrow technical focus on GDPR compliance, that the focus is blinding this effort to the purpose and intent of the GDPR in the first place.

Even in the GDPR, the reasonable expectation of privacy, and in this expected context, consent, is 'regular’ or ‘normal types’ of consent.   Consent as a term is a direct reference to social norms and culture, aka the reasonable expectation of privacy.

A regulator prescribing what consent is defeats the purpose of the law.

- Mark

  PS.   As I am sociologist and very much like the anthropology of consent in society I would refer to addition references and understanding.  There is a lot of history in this topic, I recommend brushing through some of these.

The History and Theory of Informed Consent<https://books.google.co.uk/books?id=oivnCwAAQBAJ&printsec=frontcover&dq=legal+history+of+consent&hl=en&sa=X&ved=0ahUKEwiT5sKViMHhAhXxSBUIHUjUDBEQ6AEINDAC#v=onepage&q=legal%20history%20of%20consent&f=false>
Consent in the Law<https://books.google.co.uk/books?id=auDbBAAAQBAJ&printsec=frontcover&dq=legal+history+of++consent+law&hl=en&sa=X&ved=0ahUKEwi9_OztjcHhAhWBsnEKHZQxAXkQ6AEILzAB#v=onepage&q=legal%20history%20of%20%20consent%20law&f=false>
 reference <https://books.google.co.uk/books?id=AgFLAAAAYAAJ&pg=PA8&dq=history+of+implied+consent+law&hl=en&sa=X&ved=0ahUKEwij86fYjMHhAhXFrHEKHXypDbgQ6AEIQTAE#v=onepage&q=history%20of%20implied%20consent%20law&f=false> to Implied Consent In England & Ireland<https://books.google.co.uk/books?id=AgFLAAAAYAAJ&pg=PA8&dq=history+of+implied+consent+law&hl=en&sa=X&ved=0ahUKEwij86fYjMHhAhXFrHEKHXypDbgQ6AEIQTAE#v=onepage&q=history%20of%20implied%20consent%20law&f=false>

On 8 Apr 2019, at 17:17, Bud Bruegger <uld613@datenschutzzentrum.de<mailto:uld613@datenschutzzentrum.de>> wrote:

What I much prefer is have some kind of a legal authority name it (the GDPR or the Art29WP). If we name it, it can only be wrong.

Since I believe that anyone in their right (legal) mind will stay far away from naming something that is already named, I believe that the Art29WP introduced a new term only since there was no name for it already.

Consent, in the sense of "the whole", is already defined.  Why introduce a synomym of "regular consent"?  But use a adjective to further distinguish "consent" into two subclasses makes perfect sense to me.

Eva is not available at the moment--not sure when she'll be back.  But let's wait for Rigo's reply and I will ask two colleagues who are lawyers and who are part of the EDPB.  That should yield an authoritative answer.

cheers
-b

Received on Monday, 8 April 2019 18:38:45 UTC

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