Consent requirements in comprehensive data privacy laws: Current practices and the path forward

Introduction

In an era where personal data is both a critical economic asset and a sensitive aspect of individual autonomy, privacy laws worldwide increasingly rely on user consent as the primary mechanism for governing data collection, processing, and sharing. However, despite its central role, the effectiveness of current digital consent frameworks remains highly contested.

This paper critically reviews how consent currently operates within major regulatory frameworks, particularly contrasting the European Union’s stringent, opt-in-based General Data Protection Regulation (GDPR) against the predominantly opt-out approach of the United States, exemplified by California’s Consumer Privacy Act (CCPA).

Part 2 outlines key legal frameworks and definitions.

Part 3 examines how consent mechanisms shape user behavior, finding that repeated prompts often lead to disengagement rather than meaningful choice.

Part 4 analyzes the broader economic effects, showing that consent requirements tend to favor large firms, raise compliance costs for smaller players, and constrain innovation.

In the final section, we synthesize leading policy and academic proposals to outline a set of potential reforms. These reforms include risk-based consent frameworks, universal privacy management tools, and co-regulatory accountability models.

The GDPR, adopted in 2016 and enacted in 2018, is built around the more stringent opt-in approach and aspires to consent that is “freely given, specific, informed, and unambiguous.”

The CCPA, adopted in 2018 and enacted in 2020, in effect for U.S. firms doing business in California, follows an opt-out approach, where consent is presumed unless actively withdrawn. As the U.S. and other countries debate national approaches to data privacy, the debates remain unresolved.

Drawing on empirical studies, this review highlights persistent shortcomings in current consent models—from interface design flaws to the disproportionate compliance burden on smaller entities. It concludes by identifying potential reforms aimed at balancing user autonomy, regulatory flexibility, and market competitiveness.

Full Policy Brief: Consent requirements in comprehensive data privacy laws

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