No User is an Island - Relational Disclosure as a Regulatory Strategy to Promote Users Awareness in Data Processing

Antonio Davola, Ilaria Querci


Digital markets are flexible and developing, and so it is privacy law. Before and together the enactment of the
GDPR, data protection rules have drawn contributions, amongst others, from sociology, anthropology,
economics, and marketing. This happens, intuitively, because privacy has an inherent social dimension: the
concepts of identity and autonomy, equality and freedom, the meaning of social relations and political relations
all play a distinct role in privacy law. Undoubtedly, a central role in constructing privacy and data protection
law has been played by decision-making studies: since its early days, individual protection has been structured
according to the axioms of economic neoclassical theory. Accordingly, the attribution of rights in favor of users
has been significantly affected by the view of individuals as homini oeconomici. Yet, as soon as deviations and
diversions from the traditional paradigm emerged, law has been proven able to evolve as well, and progressively
adjusted in order to encompass new approaches to online interaction that largely contrast with the rigidity of
the conventional economic theory of individual behavior. Still, some axioms of the early neoclassical model as
it was originally conceived are still present in consumer law, despite being widely debated amongst economic
scholars. In particular, the assumption of a-social individualism still permeates the structure of user rights,
and European privacy law rests on the implicit assumption that consent to the processing of personal data and
the analysis of big data is a purely individual choice. Against this view, the paper investigates evidence emerging
from studies and experiments that show that consent in data processing is not only – and often – partially
irrational, but also inherently relational. Then, it observes that the regulatory framework laid down by the
GDPR does not take into proper account this aspect and subsequently defends the development of a system of
contextualized disclosure as a tool to promote informed consent. Lastly, the compatibility of such a system
with the European and Californian data protection law is analyzed.

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Comparative Law Review is registered at the Courthouse of Monza (Italy) - Nr. 1988 - May, 10th 2010.
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