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Re: Taxonomy of legal bases

From: Rigo Wenning <rigo@w3.org>
Date: Mon, 08 Apr 2019 22:54:05 +0200
To: "Mark @ OC" <mark@openconsent.com>
Cc: Bud Bruegger <uld613@datenschutzzentrum.de>, "Harshvardhan J. Pandit" <me@harshp.com>, Eva Schlehahn <uld67@datenschutzzentrum.de>, public-dpvcg@w3.org
Message-ID: <2307439.ACyeSixlj1@montaigne>
On Montag, 8. April 2019 20:30:06 CEST Mark @ OC wrote:
> 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 would caution against this assumption. Art. 9 criteria are very strong and 
make most systems unusable. And only because we do not understand it fully 
yet, doesn't mean it is not operational.
> 
> 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.

not usable and irrelevant ;)
> 
> 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.

The intention is to help. Later, everyone is free to use those concepts to the 
full or partial extend. So I don't think trying to create a GDPR knowledge 
graph is a bad idea.
> 
> 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.

Uhhhh, this is mixing more confusion into the cocktail by adding yet another 
legal institute that may even conflict with the one we have... ;-/
> 
> A regulator prescribing what consent is defeats the purpose of the law.

Not my view. We have a legal definition and I can't see why this 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.

This is the problem. The knowledge graph is supposed to reflect the legal 
concept, not the varieties of natural language meanings floating in different 
cultural areas. Trouble is, law uses natural language. The Mathematicians were 
smarter and used their own notation, which avoids this kind of 
misunderstanding. 

 --Rigo
Received on Monday, 8 April 2019 20:54:10 UTC

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