Are the principles and laws of the multilateral trading system, as embodied by the World Trade Organization, still relevant today?

by Eliana Baey*

 

1. INTRODUCTION
2. STALEMATE IN NEGOTIATIONS
3. TENSIONS BETWEEN CHINA AND THE UNITED STATES
4. INCREASED USE OF PTAs

5.CONCLUSION

 

1. Introduction 

The principles and laws of the multilateral trading system are embodied in the organisation of the World Trade Organization (WTO). The purpose of the WTO  is to act as a mechanism for governments to negotiate common policy disciplines to reduce trade barriers, both foreign and domestic, and to create freer and smoother trade.[1] The WTO is guided by five principles, which provide a general framework for working towards the eventual aim: trade without discrimination; freer trade through negotiation;predictability through binding and transparency; promoting fair competition; and encouraging development and economic reform. The WTO is also governed by laws which provide a more specific direction by setting out what member States should or should not do. These laws exist within the articles of the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As these principles and laws are foundational to the WTO, it is necessary to address whether they should be overhauled to fit the changing ecosystem of international trade. This blog will discuss the challenges the WTO is facing and whether the principles and laws which currently govern it are relevant in addressing them. Section 2 will discuss the stalemate in negotiations embodied by the Doha Round and how affirming the principle of freer trade and reforming the WTO’s laws will strengthen the WTO’s ability to fulfill its fundamental purpose. After this, Section 3 will evaluate the effect of tensions between the United States (US) and China and how a timely reminder to adhere to the principles of free trade and predictability is necessary to minimize the spillover effects of sour relationships between more powerful MS on the functionality of the WTO for other MS Finally, Section 4 will tackle the increased use of preferential trade agreements (PTAs) and why PTAs are in fact a successful example of the WTO adhereing to its principles through its laws to help mediate between interests of all of its MS. This blog will conclude that the principles of the WTO remain relevant and should be reaffirmed, given their foundational and hermeneutical  importance for the framework of the multilateral trading ecosystem. However, there is a need to change how these principles are applied to rise to the challenge of enforcing obligations on MS and the increased use of PTAs.

 

2. Stalemate in Negotiations

The stalemate in negotiations is the most obvious problem within the WTO as it affects the ability of the organization to fulfil its raison d’etre. The stalemate in negotiations, most prominently in the Doha Round, appears to undermine the feasibility of the principle of freer trade through negotiation. The Doha Round – started in 2001 and who’s completion were set for 2005- has been stalled after the 2008 trade ministers’ meeting in Geneva collapsed. The most contentious issue has been the differences between the rich and developing nations on agricultural subsidies.[2]  Lord Brittan argues that, in contrast to the Uruguay round that achieved significant reductions in both tariff and non-tariff barriers, the Doha Round’s objectives consist of leftover trade areas that States could not come to a consensus on. [3]  Hence, rather than altering the underlying principle of negotiation, resolving the impasse requires a breakthrough in discussions and negotiation methods. Some success was achieved at the 9th Ministerial Conference in Bali, where the 2013 Trade Facilitation Agreement -the first multilateral treaty under the WTO- was agreed. Two-thirds of the WTO membership has successfully ratified the agreement. In addition, the concerns of Least Developed Countries (LDCS) have benefitted the greatest through recent negotiations. The 6th ministerial conference resulted in duty-free and quota-free market access for 97% of products from LDCS in all developed countries, except for the US. [4]  At the 8th ministerial conference, noting the failure of previous negotiations, the “Elements for Political Guidance” document was created. The document altered the approach to negotiations, placing the focus on areas of consensus within the Doha Declaration.[5] Hence, contrary to the apparently gloomy outlook of the Doha Round, LDCS have been encouraged to develop and economically reform, and freer trade has been established gradually through negotiations.

Despite previous negotiation successes, threats to freer trade still exist post negotiations. 2019  statistics show historically high levels of trade restrictions by WTO members and is evident in the increase of 27% since the previous annual overview.[6] Contrary to freer trade, the statistics prove that trade is becoming more restricted, highlighting the inherent challenges faced by a multilateral trading system. The move towards more protectionist policies suggests a need for the WTO to mete out more severe legally binding  measures. In particular, actions need to be taken by the G20, the world’s wealthiest nations group, which have been introducing high customs duties and new import bans.[7]  The success in negotiations for LDCs and the Bali Ministerial Conference suggests that the principle of freer trade through negotiations is still an essential principle at the WTO, and there is a need to reform the WTO’s laws to enforce adherence to freer trade post negotiations. However, as a recurring issue within international law, those who have the most power tend to control the rules of the game.

 

3. Tensions Between China and the United States

As 2 countries who wield significant power over the international trade arena, bilateral tensions between China and the US inevitability spillover onto the WTO, affecting the its functionality for other MS. Tensions and the erratic nature of the relations between China and the US -especially regarding the dispute settlement process- are undermining the principles of freer trade through negotiation and predictability, particularly, by  binding obligations and transparency. In the previous decade, Bown has argued that the WTO’s dispute settlement process, found in Articles 22 to 23 of the GATT, has successfully diffused tensions between the US and China. [8] This  dispute settlement system  gave the process and institutions greater legitimacy where disputes were made transparent. However, the relationship between these two States has worsened, as is evident from the protectionist measures that they have mutually enacted. [9]  In 2019, the trade-restrictive measures imposed by the US as additional duties on products from China accounted for 46.7% of protectionist measures imposed while the measures implemented by China on tariffs on imported goods from the US accounted for 11.4%.[10] Recently, this has culminated in the Trump administration refusing to approve members of the Appellate Body. The US claims that, despite transparency being a legal obligation embedded in Article 10 of the GATT and Article 63 of the TRIPS, China “disregards many of its WTO transparency obligations.[11] Charnovitz suggests that the US is vetoing appointments to the Appellate Body based on the claim that China has defaulted on its WTO obligations and the court’s apparent bias towards China.[12] However, Bown and Keynes suggest that a  more likely reason is the US’s fear that the Apellate Body will constrain the use of trade-restrictive measures, specifically against China. [13] As a result, the disputes settlement system can no longer mete out predictable consequences for members that default on their obligation to promote freer trade. [14] As such, it can be argued that the US is stalling the appointments to the appellate body to prevent being legally required to increase the transparency of its actions, at the expense of other countries that use the disputes settlement process.  Both hypothesis, China’s supposed  disrespect for its transparency obligations and the US’s alleged attempt to reduce the predictability of the system suggest that there is a need to re-affirm the WTO’s principles of free trade through negotiation and predictability, particularly by binding obligations. Solutions may include the introduction of  laws that prevent the US and China from abusing the system as a way to achieve their political aspirations. This would ensure, as much as possible, a level playing field for all MS.

 

4. Increased Use of PTAs

Despite extensive discussions and efforts to achieve a level-playing field, the option of PTAs is arguably a flaw that runs contrary to the WTO’s principles but has become part of the WTO through its laws. The legality and increased use of Preferential Trade Agreements (PTA) appears to be contrary to the principle of trade without discrimination and promoting fair competition. This principle  is closely associated with the “Most-Favoured Nation (MFN)” clause, found in Article 1 of the GATT. The MFN clause requires a country to provide any concessions, privileges, or immunities granted in a trade agreement to all WTO members, levelling the playing field between MS and promoting the idea that power is less important in WTO negotiations. The average tariff on all products dropped from 40% pre-GATT[15]  to the current average of 5%. [16] As such, the application of this principle has successfully reduced tariffs and encouraged free trade. However, the MFN only covers surface level obligations. States have expressed wishes to deepen the relationship with their trading partners. PTAs, addressed in Article 24 of the GATT, provide an opportunity to do so. PTAs help increase market access, economies of scale, and competitive advantages.  Narlikar and Priyadarshi suggest that  PTAs are a threat to LDCs where their limited production capabilities leave them out of discussions. [17] However, the aim of the WTO is not to completely eradicate tariffs. By keeping the delicate balance between what is fair and unfair -such as limiting the use of PTAs through sanctions included under Article 24- the WTO generally adheres to the principles of trade without discrimination and tries to promote fair competition.

To aid the LDCs, the WTO has encouraged positive discrimination to help reduce the inequalities between States. As part of the 2013 LDC package agreed at the Bali Conference, the agreement on Rules of Origin [18] accorded protection to LDCs against the demanding conditions of particular preference schemes. In addition, guidelines were created to improve the transparency and simplicity of rules and keep the required value-added to products as low as possible.  LDCS are also favoured with  preferential market access to trade in services. For the above, the concessions given to the LDCs have addressed concerns about discrimination resulting from PTAs. To achieve this, , recognition should be given to the WTO’s role in mediating the interests of MS. In addressing the increasing use of PTAs, the WTO has shown strong adherence to its principles and hence adapt their applicability in 21st-century trade discussions.

 

5. Conclusion 

Ultimately, while the principles of the WTO are mostly still relevant in today’s context, further reform to its  statutes is required to reinforce the objectives of the WTO and the obligations of its members. The success in recent negotiations, especially in aiding LDCs in development and economic reform-and the WTO’s adaption to the increased use of PTAs by taking into account the objectives of all MS- highlights the evergreen nature of the principles. However, the growing number of protectionist trade measures and the US’s actions in its trade war with China has revealed the need for an adjustment in its legislation to include legal sanctions.  Legislating will ensure that the actions of defaulting parties do not disadvantage countries that adhere to their WTO obligations.

________________________________________________________________________

*LLB, International Law and Globalisation, University of Birmingham

[1] Bernard M. Hoekman &, Petros C. Mavroidis World Trade Organisation : Law, economic and politics ( 2nd edn, Routledge 2016 ) 1-3

[2] Ved P. Nanda, ‘Selected Aspects of International Trade and The World Trade Organization’s Doha Round : Overview and Introduction’ (2008) 36 Denv. J. Int’l L. & Pol’y 255

[3] Craig VanGrasstek,  The History and Future of the World Trade Organisation (WTO 2013) 549

[4] Amrita Narlikar & Shishir Priyadarshi, ‘Empowering the poor? The successes and limitations of the Bali Package for the LDCS’ (2014) 35(6) Third World Quarterly 1051,1058

[5] WTO Elements for Political Guidance (1 December 2011) WT/MIN (11)/W/2

[6] WTO Annual Trade Policy Review Body Report Overview of Developments in the International Trading Environment by the Director General (29 November 2019) WT/TPR/OV/22 7

[7] WTO Report on G20 Trade Measures (21 November 2019) WTO/OMC

[8] Chad P Bown, ‘U.S. – China Trade Conflicts and the Future of the WTO’ (2009) 33 Fletcher F World Aff 27

[9] Tolulope Anthony Adekola,’US-China trade war and the WTO dispute settlement mechanism’(2019) 18(3) Journal of International Trade Law and Policy 125

[10] WTO ( n 6) 7

[11] Steve Charnovitz, ‘Grading Trump’s China Trade Strategy’(2019) 10 European Yearbook of International Economic Law 217, 222

[12] Ibid

[13] Chad P. Bown & Soumaya Keynes, ‘Why Trump Shot the Sheriffs: The End of WTO Dispute Settlement 1.0’ (2020) Journal of Policy Modeling

[14] Hunter Nottage &  Thomas Sebastian, ‘Giving Legal Effect to the Results of WTO Trade Negotiations: An Analysis of the Methods of Changing WTO Law’ (2006) 9(4) Journal of International Economic Law 989

[15] National Bureau of Economic Research, The GATT’s Starting Point: Tariff Levels Circa 1947(Working Paper 21782, 2015) 13

[16] WTO/OMC, ITC & UNCTAD, ‘World Tariff Profiles 2019 : Applied MFN Tariffs’ (2019) < https://www.wto.org/english/res_e/booksp_e/tariff_profiles19_e.pdf> accessed 1 May 2020, 8-13

[17] Preferential Rules of Origin for Least-Developed Countries – Ministerial Decision of 7 December 2013(11 December 2013) WT/MIN(13)/42  WT/L/917

[18] Rules of origin is the criteria needed to determine the country that the product is considered sourced from. This affects subsequent duties and restrictions on the product.

Is the best interests test for the care of critically ill children fit for purpose?

by Alison Howells

I. Introduction

The views of both a child’s parents and those of the medical profession play a critical role in determining whether medical treatment is in the best interests of a child. The importance of this arrangement is substantially increased where the child is critically ill.

However, it is not always possible for parents and medical professionals to agree as to what the best interests of the child are. This conflict has been highlighted by the recent cases of Alfie Evans [1], Charlie Guard [2] and Isaiah Haastrup [3]. These legal cases piqued the interest of philosophers, ethicists, academics and the wider public and created considerable support for a shift in the legal position. This warrants a critical analysis of the best interests test for the care of critically ill children.

In this blog post I will focus on instances of conflict that arise where the child is very young, and therefore is not competent to speak on their own behalf. I will argue that the best interests test for the care of critically ill children, though not without criticism, is fit for purpose. I will begin by outlining the debate around the best interests of the child. I will then analyse the role of parents, doctors and the courts when making decisions about the best interests of the child, as well as how this has been determined in decisions concerning the medical treatment of critically ill children. Then I will consider whether or not the best interests test is fit for purpose, or if the courts should adopt the ‘serious risk of significant harm’ approach as proposed in Gard [4], concluding, that although the best interests test may not be free from criticism, the harm threshold is not the solution to these criticisms.

II. Outlining the debate

In the vast majority of situations involving the medical treatment of young people there will be agreement between medical practitioners and the child’s parents, so as to enable (or cease) the proposed treatment. This produces the desirable result that the choice of treatment is a joint decision. There are, however, cases in which there is a dispute between the treating practitioners and the child’s parents. Where this conflict arises, and cannot be resolved between the parties, the courts are called upon to make a decision about what is in the best interests of the child.

The debate goes further than this though; these cases raise complex issues about the boundaries between private family matters and state intervention. They demand consideration of the extent to which we give parents the freedom to decide about their children and when the child’s welfare demands limitations to that freedom. This is particularly important in a liberal pluralist society, where considerable importance is placed on people being able to freely form and follow their own choices. In Portsmouth NHS Trust v Wyatt [5], Hedley J said that these cases “evoke some of the fundamental principles that undergird our humanity. They are not to be found in Acts of Parliament or decisions of the courts but in the deep recesses of the common psyche of humanity.” [6]

III. Best interests

The best interests of the child is one of the most important concepts in both child and medical law, but remains one of the most difficult to explain. The concept has no statutory definition in Scots law, but has been widely defined by academics, professions and in case law. In its most basic form, the best interest test constitutes a literal demand that a decision is made to produce the outcome that is best for the child. In medical decisions, it is customary to assume that a best child’s interests are served by measures that prolong life. [7] However, the ultimate outcome remains subject to what the individual circumstances of the case demand. When determining the best interests of a child, medical professionals may follow the guidance provided by the British Medical Association, which has held the best interests test to include consideration of: the patient’s physical and emotional needs; clinical judgment about the effectiveness of the proposed treatment, and its alternatives; where there is more than one option, which option is least restrictive of the patient’s future choices; the likelihood and extent of improvement in the patient’s condition if treatment is provided; risks and side effects; the views of parents and others who are close to the patient; relevant information about the patient’s religious or cultural background; and the views of other health care professionals. [8]

Court precedent, however, deems the best interest test to have been “best encapsulated” [9] by Baroness Hale in Aintree University Hospital NHS Trust v James [2013] UKSC 67, namely:

[39] The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.

This authority was reviewed and distilled by MacDonald J in Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam) where it was held that the best interests test “will include ‘medical, emotional, sensory and instinctive considerations’ as well as the rebuttable presumption of the preservation of life, the nature of the medical treatment (what it involves, its prospects of success and the likely outcome for the patient) and the views of both the doctors and the parents”. [10]


Diagram One [11]



IV. Who is involved in determining the best interests of the child?

A. Parents

Under the Children (Scotland) Act 1995, parents have responsibility for ensuring that their children receive appropriate medical treatment. [12] This correlates with their “right to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment.” [13] This is consistent with the belief of the court in the overwhelming majority of cases that parents are “the best judges of a child’s welfare.” [14] However, the parent’s right to consent to a child’s medical treatment is not absolute. In Gillick, it was held that “parental rights to control a child do not exist for the benefit of the parent but for the benefit of the child” [15] and “must be exercised in accordance with the welfare principle and can be challenged, even overridden, if it be not”. [16] 

B. The medical profession

In the past, the idea that ‘doctor knows best’ was prevalent amongst medical practitioners and their patients. Whilst the right of patients to make decisions about their medical care have significantly advanced in recent decades, and continues to do so, the idea still resonates in some areas of practice. When providing care for, and making decisions in relation to, a critically ill child, the medical practitioner has a duty to promote the child’s welfare in accordance with the values of the profession as detailed in Good Medical Practice. [17] Originally grounded in common law, this duty can now be found in ‘0-18 years: guidance for all doctors’, as introduced in 2007 by the General Medical Council. This guidance states that “doctors should always act in the best interests of children in all decisions which may affect them”. [18] To help determine the best interests of the child they must consider “the views of the child, parent or other relevant persons [19]; the cultural, religious and other beliefs and values of the child or parents [20]; the views of other healthcare professionals involved in providing care to the child or young person and of any other professionals who have an interest in their welfare [21]; and which choice, if there is more than one, will least restrict the child or young person’s future options”. [22] This list is not exhaustive and the weight attached to each point will depend on the circumstances. [23]

Where a decision has to be made about the continuation of the treatment, practitioners may refer to guidance provided by the General Medical Council including Good Medical Practice (2013); Consent: Patients and Doctors Making Decisions Together (2008); and Treatment and Care Towards the End of Life: Good Practice in Decision-Making (2010). This guidance provides a framework to support practitioners. They may also wish to refer to Making Decisions to Limit Treatment in Life-limiting and Life-threatening Conditions in Children: A Framework for Practice [24], guidance prepared by the Royal College of Paediatrics and Child Health, which states that treatment is no longer in the child’s best interests if it is unable or unlikely to prolong life significantly or where treatment may be able to prolong life significantly but will not alleviate the burdens associated with the illness or treatment itself. [25]

C. The courts

If a child’s parents refuse to consent to a treatment that the doctors believe to be in the child’s best interests, or to the withdrawal of treatment, the relevant hospital trust can apply to the court for a declaration that treatment without consent would be lawful. The question for the court is, therefore, which course of action is in the child’s best interests. As ‘parens patriae’, the court has the authority to act as the legal guardian of children and to protect their interests. This jurisdiction is often described as “theoretically limitless”. [26] Court’s may also make a specific issue order requiring or withholding medical treatment under the Children (Scotland) Act 1995. [27]

V. Current practice

While the concept of the best interests of the child continues to evolve, the law on the best interests of a critically ill child has been settled for a long time. There is a significant volume of case law in which the court have considered what is in the best interests of the child. These judgements demonstrate a great deal of consideration and sensitivity towards the parents of the child.

A. Gard

Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410 concerned a disagreement between the parents and doctors of a critically ill infant with mitochondrial disease. The parents asserted that it was in his best interests to receive an experimental treatment in the US, which was thought by the child’s parents to have the potential to improve the child’s condition. The appellants argued that in situations where there is a choice of treatments it should fall to parents, rather than the courts or doctors, to make the choice as to whether or not treatment is in the child’s best interests. [28] They also submitted that judicial interference should only be permissible where a court is satisfied that the decision made by a child’s parents was likely to cause the child significant harm, [29] and the hospital’s application to prevent the delivery of a therapy which it did not, itself, intend to provide, was outside its power as a public authority. [30]

It was held that the legal test which applied, and would always apply, was whether treatment would be in the child’s best interests. In the circumstances before them, the court agreed that if the child were to be taken to the US for treatment, he would be exposed to continuing pain, suffering and distress without any realistic prospect of improvement. Treatment was, therefore, not in his best interests. [31]

It was also held that the hospital had not acted outside its powers. The application made by the NHS trust concerned the removal of treatment in the UK rather than the proposed experimental treatment. It was the parents’ who had raised the issue of US therapy before the court. Furthermore, the fact that the US therapy had represented a large part of the discussion in the proceedings demonstrated that the parents’ views were considered a central part of the best interests test. [32]

The applicants attempted to appeal this decision to the UK Supreme Court. However, after considering the submissions made by the parties, the Supreme Court declined permission to appeal. In explaining the decision, Lady Hale noted that whilst anyone was “bound to feel utmost sympathy for devoted parents who are desperate to explore every possible way of preserving the life of their gravely ill but much loved baby son, as judges, the role of the court was to apply the law”. [33] They therefore endorsed the approach of the lower courts as having correctly done so.

B. Evans

In the case of Alfie Evans [34] the NHS trust involved in Alfie’s treatment sought a declaration to the effect that continued ventilatory support was not in his best interests, and therefore discontinuing such treatment would be lawful. His parents had argued that they should be allowed to take Alfie to Italy, where he could receive further treatment.

Justice Hayden held that Alfie’s brain had been devastated by progressive degeneration and that this presented obvious challenges to taking him to Italy including the increased vulnerability inherent in removing him from intensive care and the maintenance of his anticonvulsant regime. [35] There was also no real prospect of successful treatment that justified these challenges. [36] The alternative advanced by the parents was therefore held to be irreconcilable with the child’s best interests. [37]

It was in the best interests of the child to discontinue treatment, since further treatment was “futile”. [38] The continuation of treatment would “compromise his future dignity” and “failed to respect [his] autonomy”. [39]

C. Haastrup

Isaiah Haastrup [40] was born in February 2017 with irreversible brain damage and had since been on life support. His parents applied for permission to appeal against the decision of the courts and medical professionals involved in Isaiah’s care that life-sustaining treatment was no longer in his best interests.

Justice MacDonald held that the court had arrived at a reasoned decision after hearing extensive evidence from experts and medical professionals, who stated that Isaiah’s brain injury was irreversible and would not improve with treatment. [41] Therefore, it was in the child’s best interests to remove treatment.

As this had been the finding of the previous judgement, there was no real prospects of a successful appeal and therefore the appeal was refused.

D. Defence of the orthodoxy

Gard [42], Evans [43] and Haastrup [44] all raise legitimate concerns about the current threshold and test for determining the best outcome in decisions about the medical treatment of critically ill children. The cases provided the courts with an opportunity to review the law. However, the decision was taken in all three of the judgements to affirm the well-established position that the threshold for judicial intervention and test used to determine the outcome of a decision in legal disagreements about a child’s medical care is the best interests of the child.

VI. Reform and the doctrine of serious harm

A. Reform

In response to their experience, both Charlie and Alfie’s parents argued for reform of the current law, whereby the threshold for judicial interference in medical decisions concerning critically ill children would increase from “the best interests test” to one of “serious harm”. [45] While these efforts have so far been unsuccessful, Parliament has acknowledged the importance of an analysis of how effective the “best interests” test is. [46]

B. Serious harm

The serious harm principle provides an alternative threshold for state intervention in medical decisions concerning critically ill children. The serious harm threshold holds parents as the primary decision-maker in decisions about the medical treatment of a child. It requires the state to refrain from interfering with or overriding parental decisions unless their decisions will result in “significant (or serious) harm” to the child. [47] This threshold is premised on the idea that “the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others.” [48] This means that only harm of a sufficient seriousness warrants state intervention.

The point at which harm is sufficiently serious to warrant state intervention is widely debated amongst academics and professionals. Feinberg suggests that serious harm exists where interests necessary for more ultimate goals including physical health and vigour, integrity and normal functioning of one’s body, absence of pain, suffering or grotesque disfigurement, intellectual acuity, and emotional stability are at risk. [49]  Others including Wing have argued that intervention is only justified where ‘immediate action is necessary” [50] or children are “deprived of their basic needs”. [51]

C. In favour of a harm threshold

There are several reasons to give the biggest weight to parents’ interests and views in decision-making.

(i) Proximity to the child

The parent-child relationship places parents in a position of unique proximity to the child. This proximity distinguishes the parent-child relationship from that of doctor-patient and court to child. Diekema has argued that this proximity means parents are “best placed” to determine what is in their child’s best interests. [52] Wilkinson has also argued that parents are in a “unique epistemic position”, which enables them to “best assess the child’s quality of life and predict their ability to cope with treatment”. [53] If the parent is best placed to determine what is in the child’s best interests, they should be granted status as the primary decision-maker, and therefore to have their decisions respected, without interference.

As a result of this proximity, it is a child’s family who must deal with the consequences that flow from decisions about a child’s medical care. According to Auckland and Gold, this implication lends significant weight to the argument that adults should have a considerable say over what treatment the child receives.[54] Salter has argued that as a consequence of their role as “central leaders and bearers of responsibility and accountability” in the family, parents are also “the central bearers of these decisional consequences”. [55] It is therefore essential that the law supports parents as far as possible as decision-makers.

(ii) Article 8

It has also been argued that by reforming the law to adopt the “significant harm” threshold the law could better protect parents’ right to respect for privacy and family life. [56] The current best interests test has been viewed as a particularly low threshold. As a result, parental decisions that should be protected by Article 8 are vulnerable to court interference. This argument was put forward in the Gard case, where it was argued that “if the state can, without the highest of justification, intrude into so private an area of human life as a joint parental decision made about one’s child’s upbringing, the scope for protection against state interference afforded by our most basic constitutional values, as well as by Article 8 ECHR, is considerably eroded”. [57]

Article 8 also includes the right to autonomy. Parental autonomy requires parents to be free to make decisions about their children independently. [58] In ex parte Williamson [59] Lady Hale held that “in a free society, parents should be allowed a large measure of autonomy in the way in which they discharge their parental responsibilities”. [60] The restrictions placed on parental rights and views in children’s medical decisions in some ways appear to undermine this right, resulting in some parents feeling disempowered. In the Gard case, the parents of the critically ill child expressed the view that their parental rights had been “stripped away”. [61] Elizabeth Anderson, head of campaigns at Parliament Street, has argued that under the current law “parents are being side-lined in the care of their children” and proposes that a move to the harm threshold would “re-empower parents to have a say in the treatment of their children”. [62]

The weight of these arguments is limited in so far as parental rights over the child are not absolute and have never been treated as such. [63] In the debate surrounding the recent cases of Gard, Evans and Haastrup, the position of the parents has often been framed in terms of ‘parental rights’. However, parental rights exist only for the purpose of parents fulfilling their responsibilities. [64] And while it is true that the Article 8 rights of some parents may be engaged in these instances, as affirmed by Lady Hale in the refused appeal of Gard, “where the rights under Article 8 of the parents and the child are at stake, the child’s rights must be the paramount consideration and if there is any conflict between them the child’s interests must prevail”. [65]

(iii) Transparency and reflecting practice

Previous court decisions, and medical practitioners, have already used some form of harm threshold. For example, in Re King [66], Baker J held that “the state has no business interfering with the exercise of parental responsibility unless the child is suffering or is likely to suffer significant harm”. [67] Wilkinson has also observed that practitioners only override parent’s decisions “at point of real risk of harm”. [68] He uses the examples of immunisation and new-born screening tests. He argues that while these treatments are in the child’s best interests, health professionals will rarely, if ever, invoke child protection proceedings if a parent refuses these treatments. If the significant harm threshold is already applied in practice, it can be argued that this should be reflected in law in order to increase transparency and accountability.

(iv) Value decisions

Decisions about the best interests of a critically ill child are questions of value. These decisions provide space for reasonable disagreement, since different people have different views about what makes life meaningful. According to Goold, decisions about the best interests of a critically ill children are decisions that test our commitment to respect for plurality of values. [69] In order to ensure others are fully respected in a liberal pluralistic society, people must be free to make their own decisions, including decisions about their children. Similarly, in Re L (Care: Threshold Criteria) [70] Hedley J held that “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”. [71]

If the views of others are to be fully respected, it is problematic for courts to be tasked with identifying a single best course of action, as this suggests that there is a right answer to what is important in life and what quality of life is worth living. By allowing parents to decide what is in the child’s best interests, the harm threshold better respects a parent’s personal beliefs and values, if not those of society as a whole. [72]

D. Objections to a harm threshold

(i) Sufficient and appropriate

The “best interests” test provides a well-established analytical framework, which has developed over decades and allows harm to be considered within a wider context of other considerations.[73]  There is no need to incorporate a harm threshold into medical decision-making in order to prevent unjustified interference of the courts because the courts already exercise their discretion to determine whether or not they hear a case sparingly. Applicants do not bring frivolous applications and the court does not have to give leave to hear the case when they do. This allows them to avoid hearing applications without merit. Taylor has argued that this discretion is already used to “filter out vexatious or unwarranted applications” whilst at the same time preventing the creation of any “substantial hurdles to the applicant with genuine welfare concerns”. [74]

It can be argued that the best interests test already sufficiently takes account of parental views and, as a result, the best interests test is fit for purpose. In Re Wyatt [75], Hedley J held that “parental wishes should be accommodated as far as professional judgement and conscience will permit, but no further”. [76] This means that although some parents may feel disempowered where what is deemed to be in the child’s best interests does not reflect their views, this, in and of itself, is not enough to demonstrate the law, as it stands, is not fit for purpose. Whilst the protection of autonomy in a liberal society may allow for parents “to become martyrs” of their own beliefs, “it does not follow that they are free in identical circumstances to make martyrs of their children”. [77]

(ii) Change will make no practical difference

As already mentioned, the law and medical practitioners already use some form of harm threshold. While I have already noted that some see this as a reason to reform the law, others might consider this as a reason not to change the law. Wilkinson observes that professionals generally refrain from seeking court intervention until they are worried that the child will be harmed by their parents’ wishes. [78] In Gard [79], it was held that if the parents were to take their child to the US and to allow him to undergo experimental treatment, this would “expose him to continued pain, suffering and distress”. [80] This provides evidences that a de facto harm threshold is already being applied by the courts. For this reason, Foster has argued that it is unnecessary to change the current threshold for judicial intervention. [81]

The court has also demonstrated a clear reluctance to interfere where a person exercises their parental responsibility and, where possible, has protected the parents’ decisions. For example, in Re King Baker J held that it “is no business of this court, or any other public authority, to interfere with their decision”.[82]  More recently in BC v EF [83], despite the finding that a vaccination was in the children’s best interests, the court declined to enforce the order, holding that the decision was to be made by the parents. The framing of the basis on which the court can intervene will therefore make little difference, suggesting that the best interests test remains fit for purpose.

(iii) Parental vulnerability and emotional implications

There is also reason to believe that it is not appropriate to allow parents to make the ultimate decision in medical decisions concerning a critically ill child. Parent’s judgements are often compromised in these situations and Herring believes that the lengths they go to, in order to protect their children “exposes them to vulnerabilities in terms of time, emotional energy and money spent” that should be considered throughout judicial proceedings. [84] Parental vulnerability is best recognised through the best interests test and courts are already “mindful that the views of the parents may, understandably, be coloured by emotion or sentiment”. [85] For example, in Evans [86], Hayden J held that the parents of the child understood the significance of his brain scan, but “time and again avoided confronting them.” [87] These considerations require some form of restriction on the effect we give to the views of the parents, albeit in a sensitive way. Arguably, the best interests test does this by giving weight, but not providing an overriding power, to the views of the parents. The best interests test is therefore still fit for purpose.

(iv) Change will be counter-productive

Some also believe that change will produce adverse effects in practice, since the harm threshold will remove the emphasis from what is best for a child and place it on what is harmful to them. Birchley suggests that this shift would require the court to use greater “evaluative overtones”, resulting in parental decisions being explicitly characterised as harmful. [88] Not only would this be “unnecessarily harsh” on vulnerable parents, but it would provide “no practical gain” for any parties involved in proceedings. [89] The harm test might also jeopardise the wellbeing of children. Lowe and Juss have argued that the policy of the law is to “protect children against wrong-headed parents”. [90] The law would not be able to do so under the significant harm test, since it requires parents to have the overriding say in their child’s treatment, and therefore “allowing for the child’s interests to be compromised for the sake of the interests of parents or other family members”. [91]

(v) Shared decision-making

Support for the move to a harm threshold is grounded in the “desire to make parents the primary arbiters of a child’s welfare”. [92] If the law were to prioritise the beliefs of the parents by adopting a test and threshold of significant harm, this would undermine the current shared decision-making process. The default approach for all parties involved in making medical decisions about an ill child, which is effective in the majority of cases, is to come together and build a consensus as to what is in the best interests of the child. [93] This is grounded by the fact that “the law regards the upbringing of children not as a matter of exclusive parental rights, to be defended unless forfeited, but as a collaborative responsibility in which parents take the leading role”. [94]

If the law shifts in order to give parents the final say in medical decisions, there is a risk it will change the way communications between the medical profession and the child’s parents take place. It also increases the likelihood of the views of the medical profession becoming completely disregarded. Glosser and Pope have also argued that this change will result in the breakdown of the current inquisitorial process in decision-making, where, instead of everyone trying to identify the best interests of the child, the process would become adversarial and driven by argumentation. [95] These criticisms are not applicable to the current best interests test, making it fit for purpose in contemporary medical decision-making.

VII. Conclusion

The medical treatment of critically ill children raises complex value questions that go a lot deeper than the treatment at hand. Whilst no one is immune to the emotional plight of the parents, in the recent cases of Gard [96], Evans [97] and Haastrup [98], we must tread with caution in allowing these emotions to determine the legal regulation of medical decisions. While these cases raised legitimate concerns about parental freedom, it must be understood that although they do not always triumph, parental views are treated with sympathy, respect and play a significant role in determining the best interests of a child. The harm threshold may present a more philosophically justified standard in a liberal society. However, the counter-productive implications of such a reform on a practical level, including the undermining of the present shared decision-making process, as well as the large weight already afforded to the views of the parents all support the argument that the best interests test for the care of critically ill children remains fit for purpose.

______________________________________________________________________

[1] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam).

[2] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410.

[3] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam).

[4] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410.

[5] [2004] EWHC 2247 (Fam).

[6] Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam), para 21.

[7] The British Medical Association, Children and Young People Ethics Toolkit (2016).

[8] The British Medical Association, children and young people ethics toolkit (2016).

[9] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam), per Justice Hayden at para 48.

[10] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 127 (Fam), para 69.

[11] D Wilkinson, “In Defence of a Conditional Harm Threshold for Paediatric Decision-Making” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[12] Children (Scotland) Act 1995, s 1(a).

[13] Gillick v West Norfolk and Wisbech AHA [1985] 3 W.L.R. 830, at 184.

[14] Gillick v West Norfolk and Wisbech AHA [1985] 3 W.L.R. 830, at 173.

[15] Gillick v West Norfolk and Wisbech AHA [1985] 3 W.L.R. 830, at 170.

[16] Gillick v West Norfolk and Wisbech AHA [1985] 3 W.L.R. 830, at 184.

[17] General Medical Council, Good Medical Practice (2013).

[18] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 8.

[19] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 12(a)-(c).

[20] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 12(d).

[21] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 12(e).

[22] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 12(f).

[23] General Medical Council, 0-18 years: guidance for all Doctors (2007), para 13.

[24] Royal College of Paediatrics and Child Health, Making Decisions to Limit Treatment in Life-limiting and Life-threatening Conditions in Children: A Framework for Practice (2014).

[25] Royal College of Paediatrics and Child Health, Making Decisions to Limit Treatment in Life-limiting and Life-threatening Conditions in Children: A Framework for Practice (2014) at 3.1.3.

[26] Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11, at [25].

[27] Children (Scotland) Act 1995, s 11.

[28] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410, para 66.

[29] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410, para 66.

[30] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410, para 84.

[31] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410, para 114.

[32] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410 para 118.

[33] UKSC, In the matter of Charlie Gard (Permission to Appeal Hearing) (2017).

[34] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam).

[35] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam), para 63.

[36] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam), para 64.

[37] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam), para 64.

[38] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308, para 66, Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam), paras 12-13, and C Auckland, “Futility” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[39] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam), para 66.

[40] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam).

[41] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam), paras 12-13.

[42] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410.

[43] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam).

[44] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 147 (Fam).

[45] The Charlie Gard Foundation, Charlie’s Law (2018).

[46] HL Deb 15 October 2018 vol 793 col 387.

[47] C Auckland and I Goold, Defining the Limits of parental authority: Charlie Gard, best interests and risk of significant harm threshold (2018), L.Q.R 2018,134(Jan) 37-42.

[48] J Stuart Mill, On Liberty and Utilitarianism (1993).

[49] J Feinberg, Harm to Others: The Moral Limits of the Criminal Law (1984).

[50] K Wing The Law and the Public’s Health (3rd ed) (1990).

[51] L Ross and T Aspinwall, Religious Exemptions to the Immunization Statutes: Balancing Public Health and Religious Freedom (1997).

[52] D Diekema, ‘Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention’ (2004) 25 Philosophy of Medical Research and Practice 243, 244.

[53] D Wilkinson, “In Defence of a Conditional Harm Threshold Test for Paediatric Decision-Making” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[54] C Auckland and I Goold, Parental rights, best interests and significant harms: who should have the final say over a child’s medical care? (2019) Cambridge Law Journal, 78 (2). pp. 287-323.

[55] E Salter, ‘Deciding for a Child: A Comprehensive Analysis of the Best Interest Standard’ (2012) 33 Theoretical Medicine and Bioethics 179, 181.

[56] European Convention on Human Rights, Article 8.

[57] UKSC, In the matter of Charlie Gard (Permission to Appeal Hearing) (2017).

[58] I Goold and J Herring, “General ethical theories: is respect for autonomy the most important ethical principle?” in Great Debates in Medical Law and Ethics (2nd ed) (2018).

[59] R. (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15.

[60] R. (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, para 72.

[61] A Smith, The Daily Mail, Charlie Gard’s parents condemn Great Ormond Street’s ‘inhuman’ treatment of their son and say they have been stripped of their parental rights as they release new picture at his bedside (2017).

[62] H Christodoulou, The Sun, what are Charlie’s law and Alfie’s law, what rights would they give parents over their children’s care and who has backed them? (2018).

[63] Gillick v West Norfolk and Wisbech AHA [1985] 3 W.L.R. 830, at 184.

[64] The Children (Scotland) Act 1995, s 2(1).

[65] UKSC, In the matter of Charlie Gard (Permission to Appeal Hearing) (2017).

[66] [2014] EWHC 2964 (Fam).

[67] Re King (A Child) [2014] EWHC 2964 (Fam), para 31.

[68] D Wilkinson, “In Defence of a Conditional Harm Threshold Test for Paediatric Decision-Making” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[69] I Goold, “Evaluating Best Interests’ as a Threshold for Judicial Intervention in Medical Decision-Making on Behalf of Children” in in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[70] Re L (Care: Threshold Criteria) [2007] 1 F.L.R.

[71] [2007] 1 F.L.R. at 50.

[72] I Goold, “Evaluating Best Interests’ as a Threshold for Judicial Intervention in Medical Decision-Making on Behalf of Children” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[73] C Auckland and I Goold, Defining the Limits of parental authority: Charlie Gard, best interests and risk of significant harm threshold (2018), L.Q.R 2018,134(Jan) 37-42.

[74] R Taylor, “Parental Decisions and Court Jurisdiction: Best Interests or Significant Harm?” in in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[75] Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam).

[76] Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam), at 40.

[77] Prince v Massachusetts 321 US 158 at 170 as quoted in Re E [1993] 1 FLR 386, at 391.

[78] D Wilkinson, “In Defence of a Conditional Harm Threshold for Paediatric Decision-Making” in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[79] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410.

[80] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410 at 114.

[81] C Foster, Harm: As Indeterminate as “Best Interests”, but Useful for Triage (2016) 42 Journal of Medical Ethics 121.

[82] Re King (A child) [2014] EWHC 2964 (Fam), at 34.

[83] (Parental Responsibility: Immunisation) [2017] EWFC 49.

[84] J Herring, ‘Parental Responsibility, Hyper-Parenting, and the Role of Technology’ in R Brownsword, E Scotford and K Yeung (eds), Oxford Handbook of Law, Regulation and Technology (2017).

[85] King’s College Hospital NHS Foundation v Thomas [2018] EWHC 127 (Fam), at para 69.

[86] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam).

[87] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam) at 38.

[88] G Birchley, ‘The Harm Threshold and Parents’ Obligation to Benefit their Children’ (2016) Journal of Medical Ethics 111, 113.

[89] K Gollop and S Pope, Charlie Gard, Alfie Evans and R (A Child): Why A Medical Treatment Significant Harm Test Would Hinder Not Help (2019).

[90] N Lowe and S Juss, Medical treatment, pragmatism and the search for principle (1993), Modern Law Review 865-72.

[91] D Wilkinson, “In Defence of a Conditional Harm Threshold Test for Paediatric Decision-Making” in in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[92] I Goold, Evaluating “Best Interests’ as a Threshold for Judicial Intervention in Medical Decision-Making on Behalf of Children” In in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[93] K Gollop and S Pope, Charlie Gard, Alfie Evans and R (A Child): Why A Medical Treatment Significant Harm Test Would Hinder Not Help (2019).

[94] R Taylor, “Parental Decisions and Court Jurisdiction: Best Interests or Significant Harm?” in in I Goold, J Herring and C Auckland, Parental Rights, Best Interests and Significant Harms: Great Ormond Street Hospital v Gard (2019).

[95] K Gollop and S Pope, Charlie Gard, Alfie Evans and R (A Child): Why A Medical Treatment Significant Harm Test Would Hinder Not Help (2019).

[96] Great Ormond Street Hospital for Children NHS Foundation Trust v Yates [2017] EWCA Civ 410.

[97] Alder Hey Children’s NHS Foundation Trust v Evans [2018] EWHC 308 (Fam).

[98] Kings College Hospital NHS Foundation Trust v Thomas [2018] EWHC 127 (Fam).

CONSENT AS AN APPROPRIATE LEGAL GROUND FOR PROCESSING IN THE DIGITAL ENVIRONMENT. ANALYSIS UNDER THE SCOPE OF THE EUROPEAN GENERAL DATA PROTECTION REGULATION

By Jorge Tisné Niemann*

A. INTRODUCTION
B. CONSENT AS LEGAL GROUND FOR PROCESSING
(1) Freely given consent
(2) Specific consent
(3) Informed consent
(4) Unambiguous consent
C. SPECIFIC SITUATIONS IN WHICH CONSENT CONTINUES TO BE A NECESSARY GROUND FOR PROCESSING
D. CHALLENGES FOR CONSENT IN THE DIGITAL ENVIRONMENT
(1) Mass digitisation as a new context of imbalance of power
(2) Additional safeguards provided by the GDPR to protect users’ rights and freedoms
E. CONCLUSION


A. INTRODUCTION

Companies and public bodies have realized that accessing and controlling the information of individuals is essential for today’s economic and political systems. The new tendency of collecting information has been called surveillance capitalism. [1] Even though personal data is increasingly becoming a precious asset for trade and security, surveillance capitalism comes with its own problems, especially regarding how the individuals will exercise their fundamental right to data protection under the new technologies. [2]-[3]

Users have traditionally relied on individual consent to maintain control over their collected data. [4] This is because prior to the introduction of computerised systems, processing was done by written means, which meant that the risks of infringements were limited to a narrower scale. [5] Yet, the digital era has made it difficult for users to understand how their information is being collected, used, combined and shared. Furthermore, it has become difficult to understand how to exercise individual rights, particularly because most of the time it is uncertain where the information is, who are the controllers and for what purposes is has been used.

Accordingly, the purpose of this blog is to critically discuss the role of consent in the context of mass digitization and how the General Data Protection Regulation (“GDPR”) compensates for the restrictions on consent. For this purpose, the second section will describe the notion of consent as a general legal basis for processing under the GDPR. The third section will examine the specific situations in which consent is still a fundamental legal basis. The fourth section will analyse the imbalance of power present in the digital environment, along with an overview of the additional safeguards provided by the GDPR to guarantee the rights and freedoms of individuals.

The blog concludes that even though consent remain as a necessary legal ground for processing under certain circumstances, mass digitisation has inevitably limited its effectiveness to guarantee data subjects’ control. Nevertheless, the GDPR provides sufficient safeguards to guarantee the rights of data subjects in the digital environment.


B. CONSENT AS LEGAL GROUND FOR PROCESSING

Consent has been understood as the best way to secure individuals’ control over their personal information. Consent stimulates the subjects’ trust and is “the most global standard of legitimacy”. [6] This has also been called as the principle of informational self-determination. [7]

Since article 8(2) of the Charter of Fundamental Rights of the European Union states that consent is a key element regarding the protection of personal data [8], the Article 29 Data Protection Working Party has undertaken efforts to explain the sense and scope of its notion under the data protection framework. [9] It should be noted that consent as legal basis for processing is not new under the GDPR. Article 7 of the Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (“Directive 95/46/EC“) mentioned data subject’s unambiguous consent as the first listed legal criteria.

Today, in order to demonstrate the validity of a consent, it is mandatory to comply with different elements and conditions provided by the GDPR. Those elements include a definition of consent [10], while conditions are listed in Article 7 of the GDPR. Elements and conditions will be described together hereunder as they are closely related.

(1) Freely given consent

The data subject must have a real choice to accept or reject the terms of the consent. In other words, they cannot be obliged or compelled to agree. Neither should they be threatened or reasonably expect to suffer detriment due to their denial. The data subject must be free to discuss the terms and conditions. [11] Withdrawal is an essential condition for consent. [12] Its exercise must be possible in any time and by easy means (Recitals 42 and 58, and article 7(3) GDPR).

A freely given consent is essential not just for the data subject, but also for the controller, as he has the obligation to demonstrate that the consent complies with GDPR standards (Article 7(1) GDPR). [13] Regarding this obligation, and as seen by the Court of Justice of the European Union (“CJEU”), in the online environment it is not always clear who the controller is when different entities are involved in the processing of persona data. [14]

(2) Specific consent

The purposes of a consent must be clear and precise (Article 6(1)(a) GDPR). This is directly connected with the purpose limitation principle under Article 5(1)(b). [15] Data subjects must be provided with enough information to understand the purposes of processing, allowing them to maintain control over their collected information. Consent may be provided for different purposes, but all of them must be clearly stated. Ambiguous purposes or vague descriptions of processing or controllers are unlawful. In the case of multiple purposes, granular consent should be provided. In case the collected data is required for purposes different from the ones that have been previously authorised, a new consent should be obtained. [16]

(3) Informed consent

To have a freely given and specific consent, the data subject must have enough information to understand the content of what they are agreeing to. The GDPR does not define how the information needs to be provided, so it can be done by written, oral, audio or video means. [17] However, Article 7(2) GDPR mandates that in a written declaration concerning other matters, the consent request must be presented in a clearly distinguishable way, in an intelligible and easy accessible form, and using plain and clear language.

Clear and precise language should be used, considering an average person and the type of public to which the information is aimed. The minimum information to be provided are the controllers identity, purposes of processing, type of data collected, the possibility to withdraw the consent, any involvement of automated decision-making, and any possible risks that data will be transferred to countries or international organizations which do not meet adequacy standards or appropriate safeguards. [18]

(4) Unambiguous consent

Consent must be given in a clear affirmative action. The affirmative action should eliminate any ambiguity and demonstrate that the data subject made a conscious decision and took a positive action (contrary to an acceptance by omission). The action of acceptance must be individualized from other actions, so the consent can be clearly distinguished and proven. Such acceptance should be specific and can be given by any means that comply with the GDPR’s standards. [19]


C. SPECIFIC SITUATIONS IN WHICH CONSENT CONTINUES TO BE A NECESSARY GROUND FOR PROCESSING

Having in mind the importance and the specific regulation of consent under the GDPR, it is worth noting that the mass digitisation of the economy has challenged the notion of consent as a safe basis for processing and guaranteeing the user control over their information. In the words of the European Commission:

[…] in the online environment – given the opacity of privacy policies – it is often more difficult for individuals to be aware of their rights and give informed consent. This is even more complicated by the fact that, in some cases, it is not even clear what would constitute freely given, specific and informed consent to data processing, such as in the case of behavioural advertising, where internet browser settings are considered by some, but not by others, to deliver the user’s consent. [20]

Despite the challenges involved in the online environment for data privacy, the risk of limiting or even discarding consent as a legal ground in some specific cases would significantly threaten the individuals’ rights and freedoms, and as such, the control they may exercise regarding the collected information. Hence, under the GDPR, consent remains as an essential legal basis for children’s consent, sensitive data, automated individual decision-making including profiling, and transfers to a third country or an international organization. These cases will be described hereunder.

Regarding the first situation, Article 8 GDPR states that consent for information society services, when provided to a child under the age of 16, will only be lawful if the controller obtains and makes reasonable efforts to verify the authorisation of the holder of the parental responsibility over the child. Over 16 years of age, the child may give their own consent, but the controller must make sure that clear and plain language has been used so the children can easily understand it (Recital 58). Member states may provide lower ages for this consent requirement, but not below 13 years. [21]

The higher level of protection required for children is further explained in Recital 38. [22] This recital also mentions an exception to consent when “the consent of the holder of parental responsibility should not be necessary in the context of preventive or counselling services offered directly to a child”.

The second situation refers to sensitive data. Article 9 GDPR states, as general rule, that the processing of sensitive personal data is prohibited. [23] However, different legal grounds are provided as exceptions for this prohibition, consent being the only one that really relies on the decision of the data subject. Similar provisions regarding the necessity of consent before processing sensitive data were included in Directive 95/46/EC. Furthermore, the CJEU has expressly stated that the fact of publishing someone else’s health information without prior consent is an infringement of the GDPR. [24]

A third situation arises where automated individual decision-making and profiling is carried out. [25] Article 22 of the GDPR states that people have the right to not be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning them or significantly affects them, except when it is based on their explicit consent or in certain other limited circumstances. In this case, GDPR protects the autonomy of the data subjects as they are free to allow such processing to be carried out. Automated processing has the potential to create important risks for the subject’s rights and freedoms, as constant surveillance involving collection and analysis of information may generate discriminatory and unfair situations/ [26]

Finally, it must be noted that consent is not just an instrument to protect the rights and privacy of individuals, but also to guaranty the exercise of their freedoms. Individual liberty also allows people to resign some of the rights GDPR intends to guarantee. This is the case for Article 49 GDPR, where in the absence of certainty of appropriate safeguards, including binding corporate rules, a transfer or a set of transfers of personal data to a third country or an international organization shall take place if “the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards”. This is an example of how consent is not just a tool to protect the data subject, but also to allow him to take risks when it has been duly informed.

D. CHALLENGES FOR CONSENT IN THE DIGITAL ENVIRONMENT

As seen above, consent remains as an important basis for processing data under certain situations in which serious risks for data subject’s rights may be encountered. However, consent is not always an adequate basis for processing personal information, and furthermore, the digital environment has created significant constraints that challenges the validity of consent in modern times.

This section will be divided into two subsections. The first one will analyse several situations which can arise in the digital environment where an imbalance of power challenges consent as a trustworthy legal basis for processing. The second one will outline additional safeguards within the GDPR which together can secure the users’ control over their collected data, regardless of the legal basis used for processing.

(1) Mass digitisation as a new context of imbalance of power

It is well known that in some cases an imbalance of power between two subjects can turn consent an invalid legal basis for processing. [27]-[28] Individuals are not always able to give a real and genuine consent, since they may reasonably expect some sort of detriment due to their rejection. Traditionally these cases refer to public authorities [29] and the employment context. [30]

Yet the main constraints faced by consent can be observed in the digital environment. Even though the relation between cyberspace and consent has been analyzed since Directive 95/46/EC [31], mass digitisation brought a new kind of imbalance of power. [32] Big data, the Internet of Things (“IoT”), machine learning and artificial intelligence have made it almost impossible for data subjects to control their information, exercise their rights and truly understand how their information is being used, transferred and stored. This is becoming a growing problem as online monitoring and tracking technologies have become part of today’s ordinary life.

Despite the fact that it was hoped that the enforcement of the GDPR could challenge the risks technology presented for data collection [33], in practice consent has proven to be incapable of meeting the quality standards required by the GDPR in the digital era.

One of those issues relates to privacy policies in eCommerce. It is common that people ignore the content of the privacy settings with which they agree when using online platforms. Moreover, some platforms cannot even be used or accessed without the prior consent of the users to the privacy policies, making it almost mandatory to accept them, even if they are not clear or specific. Privacy policies have been criticised for their extension [34], use of technical or legal jargon and complex structures. [35] The practice of drafting policies in a confusing way creates “consensual exhaustion” [36] which explains the lack of interest on the part of users to actually read them. As an example of the incorrect presentation of privacy preferences, the CJEU, in accordance with Recital 32 GDPR, stated that consent is invalidly constituted by means of pre-ticked checkboxes that the user needs to deselect to express their refusal. [37]

Moreover, additional constraints on consent can arise in the context of smart cities and IoT, where the development of internet and artificial intelligence allows objects to communicate to access and share information without human intervention. [38] With sensors and cameras being installed in almost all portable and non-portable devices, whether located on public or at private locations, personal data is constantly being collected and processed. It is also becoming easier to collect data, as devices are being manufactured smaller, cheaper, wireless connected and with low privacy security restrictions. [39] Additionally, it can be difficult to obtain high quality consents, as privacy notices are not usually included as part of the design of devices. Consequently, the interfaces of these devices (screens, keyboards and other mechanisms) do not allow the user to be informed and actively express their preferences on the policies. [40]-[41] 

Interest has focused on privacy in the context of self-driving cars. Such vehicles will be connected through the internet, sharing information about the environment and the users. Hence, personal data of the driver, passengers and even third parties surrounding the vehicles will be collected and processed. The privacy issues have to do with defining when and how the different data subjects will give their consents prior to the vehicles’ collection and exchange of information. [42]

Similar observations have been made regarding big data, which can be used to process important quantities of data in order to predict future behaviors, create profiles of data subjects, (therefore allowing personalised online experiences through for example personalized advertisements), prevent crime or identify political orientations. [43] This is why it has been stated that big data at least challenges consent as a legal basis for processing, with particular concerns around purpose limitation [44], algorithmic transparency and data minimization. [45] The Working Party is clear that even though collective and individual benefits are expected from big data, it also requires new and innovative thinking about how to practically apply data protection principles to tackle privacy issues. [46]

Aside from the practical issues mentioned above, consent also encounters problems as an appropriate lawful basis from a political-economic scope. Consumers will engage actively in the eCommerce economy if they trust in the implemented levels of protection for their personal information. On the contrary, distrust on the standards may affect the full potential of the modern economy, with the corresponding repercussion on economic growth and people’s wellbeing. [47]

Scholars have discussed privacy issues arising from new technologies. Propositions to provide adequate safeguards for this new context have been made in relation to consents obtained at the time of processing and also for consents given prior to the collection of data. [48] Also, privacy by design and privacy impact assessments have been claimed as possible solutions. [49]-[50] Others have argued that consent should be directly replaced by different means in order to protect individual’s rights and freedoms, and in turn, make the data controllers fully accountable for the processing of the user’s information. [51]

Despite the diversity of approaches (from improvements up to moving away from consent), it is certain that consent, especially on the digital environment, is facing significant pressure, and inevitably it has become limited as an adequate ground to guarantee a data subject’s control over their information. But the core purpose of data protection is securing the rights and freedoms of data subjects, independently of the legal grounds that justify processing. Therefore, even though consent is experiencing problems, GDPR contains other elements that secure the fundamental right of data privacy.

(2) Additional safeguards provided by the GDPR to protect users’ rights and freedoms

Some elements contained in the GDPR work as safeguards to protect a data subject’s rights. It is relevant to mention how those elements interact to create a robust system, which jointly compensate for the limitations and restrictions that consent is experiencing in the digital environment.

Despite the fact that the GDPR’s elements have already been the subject of criticism due to surveillance concerns [52], the benefit of such elements rely on their general application regardless of the legal basis used for processing. Hence, even though consent may not be used, or be limited by practical issues, the following elements help to guarantee data subjects’ interests and stimulate their trust in the legal system.

Data protection principles are key elements to protect the data subject’s rights (Article 5 GDPR). They refer to lawfulness, fairness and transparency in processing; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality; and accountability. [53] These principles, in turn, are closely related with other provisions of the GDPR. For example, transparency relates to the obligation of controllers and processor to provide the data subject with the information listed by the GDPR (Articles 13 and 14). Also, controllers must comply with the obligation of giving transparent information, communication and modalities for the rights of the data subject (Article 12). They are also obliged to communicate with the data subject in the event a personal data breach is likely to result in a high risk to the rights and freedoms of natural persons (Article 34).

Purpose limitation is a relevant principle since collected data must be used for specified, explicit and legitimate purposes, and not be further processed in a way incompatible with those purposes, as its infringement will limit the subject’s control. [54] The purpose limitation sets out restrictions for controllers on how to use the collected data. Even though consent may not be used as legal ground, this principle mandates that the data subject is informed in a clear and specific way in order to understand what kind of processing will be carried out with the information. Compliance with this principle is especially important when controllers can combine data from different sources by using complex algorithms, which prevents users from clearly identifying the real purposes of the processing. [55]

Purpose limitation also connects with the principle of data minimization, which mandates that controllers collect only the adequate, relevant and necessary data in connection with the specific processing purpose. However, the same problems described for purpose limitations affect the compliance of this principle, since if the data subjects are incapable of understanding for what kind of processing will be their data used, them it also turn difficult to determinate the adequate and necessary information to carry out those purposes.

Therefore, as digitization is challenging not only consent but traditional principles of data privacy, accountability has become an important principle under the GDPR, since the controller must be able to demonstrate compliance with the law and shall be responsible for infringements. In general terms, to demonstrate compliance with GDPR, both controller and processor (when applicable) must comply with the mentioned principles, and with all other material obligations provided by GDPR. For example, two relevant duties are to implement the appropriate technical and organizational rules to meet the requirements of the regulation (Article 25) and to carry out data protection impact assessments prior to processing what is likely to result in high risk to the freedoms and rights of natural persons (Article 35). [56]

Moreover, the establishment of data subjects’ rights under the GDPR [57] and the creation of a supervisory authority with powers to impose significant administrative fees are a strong disincentive for data controllers to avoid compliance with GDPR, especially when it comes to meaningful consents.

The combination of the above mentioned elements compensate for the original imbalance of power between data subjects and controllers (especially in the digital environment). They create a responsibility for the controller and processor to demonstrate compliance with GDPR. Hence, the users can rely not just on their own efforts to maintain control over their data (exercise of rights), but on a robust system built by different components (principles, obligations, supervisory authorities, high sanctions) that are meant to protect them from data protection breaches.


E. CONCLUSION

Consent has traditionally been the usual legal basis on which processing of personal data has relied. Under the GDPR, in order to understand that the data subject has given a meaningful consent, such declaration of intention must be freely given, specific, informed and unambiguous. However, the digital environment (including Big Data, the IoT, machine learning and artificial intelligence) has challenged the efficiency of consent as the best mechanism to ensure data subject’s control over the way their data is collected, storage, used, combined, shared and owned.

When assessing the suitability of consent, it must be noted that consent is still a valid and necessary legal ground when processing involves children’s consent, sensitive data, automated individual decision-making including profiling and in case of transfers to third countries or organizations.

Aside from these specific situations, often valid consents are challenged when faced with the issue of imbalance of power. Such imbalance can be seen in the context of public authorities or employment. But the main constrains appear in the digital era. To tackle this scenario, the incorrect notion that consent is the only or primary ground to process personal data must be left behind. The best approach is to rethink how the data subject’s rights might be best protected, regardless of the legal ground in which processing relies. This point of view enables us to dial with the risks that mass digitisation represent for data privacy, but at the same time, take advantage of the immense benefits that digital economy and the free flow of data may imply for our collective wellbeing.

Notwithstanding the role of consent in the digital era, the GDPR provides a battery of elements that compensate for the original imbalance of power between data subjects and controllers. Data protection principles, the existence of a supervisory authority with powers to impose significant administrative fees and the recognition of several rights of the data subject may be mentioned as relevant elements to assess the efficiency of data protection policy and discourage infringements of the regulation.

On the basis of the foregoing, the economic and political benefits expected from eCommerce and the digital environment appears to remarkably exceed the limitations consent is experiencing (except for the cases above commented), as the GDPR contains sufficient cumulative elements that jointly represent a robust system to protect the data subject’s rights and freedoms. Therefore, efforts in the near future should be focused on the improvement and strengthening of the data protection safeguards, regardless if consent is eventually replaced or further limited as a legal ground for processing.

_____________________________________________________________________

*PhD in Law, Universidad de los Andes, Chile. Student of LLM in Innovation, Technology and the Law, University of Edinburgh, Scotland.

[1] S Zuboff, The age of surveillance capitalism: the fight for the future at the new frontier of power (2019) at 8 states: “surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioural data. Although some of these data are applied to service improvement, the rest are declared as a proprietary behavioural surplus, fed into advanced manufacturing processes known as ‘machine intelligence’, and fabricated into prediction products that anticipate what you will do now, soon, and later. Finally, these prediction products are traded in a new kind of marketplace that I call behavioural futures markets. Surveillance capitalists have grown immensely wealthy from these trading operations, for many companies are willing to lay bets on our future behavior”.

[2] Data protection is a fundamental right under article 8 of the Charter of Fundamental Rights of the European Union, as well as in Article 16(1) of the Treaty on the Functioning of the European Union.

[3] E Politou, E Alepis and C Patsakis, “Forgetting personal data and revoking consent under the GDPR: Challenges and proposed solutions” (2018) 4 Journal of Cybersecurity at 3.

[4] K Uta and C Andrew, Information Technology Law (2016) at 391.

[5] Moakes J (1986) “Data Protection in Europe – Part 1”, 1 Journal of International Banking Law 77 (82).

[6] Politou et al (n 3) at 5.

[7] Article 29 Working Party, Opinion 15/2011 on the definition of consent, WP187, adopted on 13 July 2011 at 8; S Ziegler, Internet of Things Security and Data Protection (2019) at 99. Additional definitions on the notion of informational self-determination in A Tamò-Larrieux, Designing for Privacy and its Legal Framework Data Protection by Design and Default for the Internet of Things (2018) at 30-31.

[8] Article 8(2) of the Charter of Fundamental Rights of the European Union states: “Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law”.

[9] See Article 29 Working Party (n 6) and Article 29 Working Party, Guidelines on consent under Regulation 2016/679, WP259 rev.01, version of 10 April 2018.

[10] Article 4(11) GDPR defines consent as: “‘any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her” (the highlighted is ours).

[11] Article 29 Working Party (n 9) at 5.

[12] The context of freedom in which the consent is given is left open for interpretation, as article 7(4) GDPR uses de concept inter alia that means that the specific situations in which consent was given may be review to determine if it was freely given or not.

[13] The burden of proof relies on the controller as stated by L Feiler, “The EU General Data Protection Regulation (GDPR): a commentary” (2018) at 87.

[14] Case C-40/17, Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW eV [2019] CJEU.

[15] Article 5(1)(b) describes that personal data shall be “collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes”.

[16] Article 29 Working Party (n 9) at 11-12.

[17] Article 29 Working Party (n 9) at 14.

[18] Article 29 Working Party (n 9) at 13-14.

[19] Article 29 Working Party (n 9) at 15-17.

[20] Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions. A comprehensive approach on personal data protection in the European Union. Accessed here in November 15, 2019.

[21] Article 29 Working Party (n 9) at 23-17.

[22] Recital 38 states that “children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific protection should, in particular, apply to the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of personal data with regard to children when using services offered directly to a child”.

[23] Sensitive data includes racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

[24] Case C-101/01, Bodil Lindqvist v Åklagarkammaren i Jönköping [2003] CJEU.

[25] Recital 71 GDPR explains: “data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention. Such processing includes ‘profiling’ that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyse or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, where it produces legal effects concerning him or her or similarly significantly affects him or her”.

[26] Article 29 Data Protection Working Party, Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted on 3 October 2017, at 10, include situations such as “denying people access to employment opportunities, credit or insurance, or targeting them with excessively risky or costly financial products”.

[27] In this sense, recital 43 GDPR states: “In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation”.

[28] Same idea in Tamò-Larrieux (n 7) at 89; T. H. A. Wisman, “Privacy, Data Protection and E-Commerce”, in A Lodder and A Murray (eds), EU Regulation of E-Commerce (2017) at 357.

[29] When personal information is collected for public purposes, obtaining meaningful consents can be inefficient or disproportionate. This is why GDPR offers exceptions or alternatives for processing, such as the necessity to comply with a legal obligation to which the controller is subject (article 6(c)), or the necessity for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller (article 6(e) GDPR). See Article 29 Working Party (n 9) at 26.

[30] Article 29 Working Party (n 9) at 6-7.

[31] H Rowe, Tolley’s Data Protection Act 1998: a practical guide (2000) at 216-218.

[32] Ziegler (n 7) at 100.

[33] Zuboff (n 1) at 481.

[34] Against the critics for the extension of policies, for M Hintze, “In defense of the long privacy statement (The state of cyberlaw: Security and privacy in the digital age)” (2017) 76 Maryland Law Review 1044.

[35] K Litman-Navarro, “We Read 150 Privacy Policies. They Were an Incomprehensible Disaster”. Accessed here in 14 January 2020. In the same line, Article 29 Working Party (n 9) at 14 is clear when stating: “Controllers cannot use long privacy policies that are difficult to understand or statements full of legal jargon. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form. This requirement essentially means that information relevant for making informed decisions on whether or not to consent may not be hidden in general terms and conditions”. 

[36] Wisman (n 28) at 358. The author even mentions that “It is common practice for lawyers to advise their clients to make their terms and conditions long and fuzzy, as opposed to concise and clear”.

[37] Case C 673/17, Planet49 GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV [2019] CJEU 65.

[38] M C Gaeta, “Data protection and self-driving cars: the consent to the processing of personal data in compliance with GDPR” (2019) 24 Communications Law 15.

[39] L Edwards, “Privacy, Security and Data Protection in Smart Cities: A Critical EU Law Perspective”, European Data Protection Law Review (2016) at 2-3.

[40] Edwards (n 39) at 17; Article 29 Working Party, Opinion 8/2014 on the Recent Developments in the Internet of Things, adopted on 16 September 2014 at 7. 

[41] Complementary description on how consent interacts with the internet of things in L Urquhart, H Schnadelbach and N Jager “Adaptive Architecture: Regulating Human Building Interaction” (2019) International Review of Law, Computers and Technology at 22.

[42] Gaeta (n 38).

[43] K Krasnow and P Bruening. “Big Data Analytics: Risks and Responsibilities” (2014) 4 International Data Privacy Law at 89.

[44] Uta & Andrew (n 4) at 355.

[45] On this discussion see Edwards (n 39) at 22-25. Same idea in M Macenaite, “The ‘Riskification’ of European Data Protection Law through a two-fold Shift” (2017) 8 at 515-516.

[46] Article 29 Working Party, Opinion 221/2014 on Statement on Statement of the WP29 on the impact of the development of big data on the protection of individuals with regard to the processing of their personal data in the EU the Recent Developments in the Internet of Things, adopted on 16 September 2014 at 2.

[47] European Commission, “Safeguarding Privacy in a Connected World A European Data Protection Framework for the 21st Century” (2012) Communication COM(2012) 9. Accessed here in 14 November 2019. This idea is also stated in Article 29 Working Party (n 40) at 3.

[48] S Elahi, “Privacy and consent in the digital era” (2009) 14 Information Security Technical Report at 114.

[49] Edwards (n 39) at 27-32. The author acknowledges that the proposed improvements will not solve the problem of consent in the digital era, but at least are efforts to try to obtain better quality consents.  

[50] Article 29 Working Party (n 40) at 21-24.

[51] In this line, Edwards (n 39) at 2-3 states: “In conclusion however, the paper reverts to pessimism with the view that to preserve privacy in smart cities we may need to move away from the liberal notion of ‘notice and choice’ or, in European terms, ‘consent’ and informed specific control over processing, entirely, and look instead to an ‘environmental’ model of toxic processes which should be banned or restricted notwithstanding user permission or substitute grounds for processing”. In similar words R Leenes, R Van Brakel, S Gutwirth, P De Hert, Data protection and privacy the age of intelligent machines (2017) at 75.

[52] J Andrew and M Baker, “The General Data Protection Regulation in the Age of Surveillance Capitalism” (2019) Journal of Business Ethics, suggests that consent should be required even to trade anonymized data.

[53] For reference about these principles see Feiler (n 13) at 73-78.

[54] Notwithstanding the purposes considered as compatible by the GDPR such as public interest, scientific or historical research purposes or statistical purposes (article 5(b) GDPR).

[55] J Rauhofer, “Of Men and Mice: Should the EU Data Protection Authorities’ Reaction to Google’s New Privacy Policy Raise Concern for the Future of the Purpose Limitation Principle?” (2015) 1 European Data Protection Law Review at 5-15.

[56] Other obligations are to provide the necessary information to data subject (articles 13-14), guarantee and comply with the exercise of data subjects’ rights, restrictions to processing (article 23), maintain records of processing activities (article 30), cooperate with supervisory authority (article 31), taking all security measure such as anonimisation, pseudonymisation and encryption (article 32), notification of data breaches to supervisory author and data subjects (articles 33-34), designation and correct operation of a data protection officer when applicable (articles 37-39), and to comply with provisions of transfer of persona data to third countries or international organizations (articles 44-46).

[57] Individuals have the right of access (article 15), rectification and erasure (article 16), right to be forgotten (article 17), restriction of processing (article 18), right to receive notification regarding rectification or erasure of personal data or restriction of processing (article 19), right to data portability (article 20), object automated individual decision making (article 21). Also it should be noted the right to refuse or withdraw consent (article 7), receive communication of data breaches (article 34), right to lodge a complaint with a supervisory authority (article 77), right to an effective judicial remedy against a supervisory authority or against a controller or processor (articles 78-79), and the right to receive compensation for the damage suffered (articles 82).        

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