The digital world today runs on data—every tap, swipe, click, login, search, and download leaves behind a trail of personal information. Whether we install a new app, sign up on a website, or simply give location access to a mapping service, we are constantly interacting with systems that collect and analyse our data. Interestingly, most people barely pause before hitting Allow, Accept, or I Agree. These tiny actions carry huge consequences because they represent a central concept in modern digital governance: consent.
As data begins to hold economic, political, and social value, privacy is no longer a niche concern reserved for lawyers or tech experts. It has evolved into a universal human right recognised across global democracies. In this environment, consent has emerged as the most powerful tool that enables individuals to control their digital identity. It ensures that organisations cannot freely use personal information without the user’s knowledge or explicit approval.
Modern frameworks like India’s Digital Personal Data Protection Act, 2023 (DPDPA), the EU’s GDPR, and multiple international judgments have transformed consent into the foundation upon which lawful data processing must be built. Understanding how and why this transformation happened is essential in a world where personal data defines everything from targeted ads to political campaigns.
Meaning of Consent in Data Protection
In the context of digital privacy, consent refers to a free, voluntary, informed, and clear agreement given by an individual before an organisation collects or processes personal data. It is not merely a formal act but a legal and ethical safeguard that protects autonomy.
Essential Components of Valid Consent
Freely given:
The user must have a choice — no pressure, manipulation, or coercion can be involved.
Specific:
Consent must correspond to a particular purpose. It cannot be bundled or vague.
Informed:
Users must know what data is being collected, why, and how it will be used or shared.
Unambiguous & affirmative:
A positive action (like clicking “I Agree”) must indicate approval. Pre-ticked boxes or silence do not amount to consent.
Revocable:
The user must be able to withdraw consent effortlessly.
These elements ensure that consent is meaningful rather than a symbolic formality hidden inside long policy documents.
Why Consent Is Becoming the Cornerstone of Digital Privacy
Consent has become central to data protection because of several technological, legal, and social developments.
(a) Rising Concerns About Data Misuse
Over the past decade, high-profile incidents like the Cambridge Analytica scandal, repeated Facebook breaches, and widespread unauthorised profiling have shaken public confidence.
People now worry about:
- being tracked online,
- targeted political influence,
- sale of personal data to advertisers,
- identity theft and financial fraud.
To counter these threats, consent operates as a first layer of defence.
(b) Constitutional Recognition of Privacy
In India, the Puttaswamy judgment (2017) gave privacy a constitutional status under Article 21. The Court clearly stated that informational privacy is an intrinsic part of personal liberty, making consent the basis of any intrusion into personal data.
Globally, the GDPR reinforced the same principle by identifying consent as the strongest lawful ground for data processing.
(c) Shift From Data Ownership to User Control
Earlier, businesses collected data freely and operated under the assumption that the moment users “shared” their information, it belonged to the company.
But today, the narrative has shifted—
Users don’t lose ownership simply because they shared data.
They retain control through consent, which determines:
- what can be collected,
- how it can be used,
- and for how long it may be stored.
(d) Compliance Pressure on Organisations
With stricter laws, organisations face heavy penalties for violations.
They must:
- notify users clearly,
- explain data uses,
- offer easy withdrawal options,
- avoid hidden data practices.
As a result, consent becomes not only a legal requirement but the safest operational strategy.
- Consent Under the Digital Personal Data Protection Act, 2023 (India)
The DPDP Act, 2023 brings a structured approach to consent through Section 6. For processing to be lawful:
- Consent must be free, informed, specific, and unambiguous.
- Organisations must provide a simple notice explaining the purpose of data collection.
- Consent must be a clear affirmative action.
- Withdrawal should be easy and immediate.
Data processing must stop once consent is withdrawn unless another lawful ground exists.
When Consent Is Not Required
The Act allows processing without consent in situations such as:
- legal obligations,
- national security,
- medical emergencies,
- judicial functions,
- disaster response.
But these exceptions are narrow to ensure that consent remains the primary mechanism of user protection.
Case Laws Demonstrating the Importance of Consent
- Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)
Held: Privacy is a fundamental right.
Significance: Established the constitutional basis for consent. The judgment clarified that informational autonomy lies at the heart of privacy protections.
- Shreya Singhal v. Union of India (2015)
Held: Section 66A was struck down to protect online speech.
Significance: Though not directly about data protection, it emphasises that state or private interference with online freedom must be carefully controlled—consent fits into this framework of limiting arbitrary interference.
- Carmen Kariuki v. Facebook Inc. (Kenya, 2020)
Held: Facebook processed data without explicit consent.
Significance: Reinforced that global platforms must provide clarity and cannot rely on ambiguous or misleading terms.
- Google Spain SL v. AEPD (ECJ, 2014)
Held: Recognised the “Right to be Forgotten.”
Significance: Individuals may demand the removal of outdated or harmful information. This strengthens the idea that consent is temporary and always revocable.
- In re Facebook, Inc. Consumer Privacy Litigation (FTC, 2019)
Held: Facebook illegally shared user data with third parties.
Significance: Resulted in a record $5 billion fine, illustrating the consequences of bypassing consent obligations.
These cases illustrate a global trend: consent is increasingly treated as a legal boundary that companies cannot cross.
Technology’s Role in Strengthening Consent
Modern digital systems support consent mechanisms through:
- AI-powered privacy dashboards helping users track what data is collected.
- Consent Management Platforms (CMPs)
- Detailed cookie banners allowing granular acceptance
- Opt-in mechanisms enabling explicit participation instead of default inclusion
- Easy withdrawal tools in apps, account settings, and email options.
These tools help convert consent from a one-time click into a continuous digital choice.
Challenges in Ensuring Genuine Consent
Even with advanced laws, several obstacles prevent users from giving truly informed consent.
(a) Lengthy and Complex Privacy Policies
Most policies are written in legal jargon and exceed thousands of words. Users rarely read them, which undermines informed consent.
(b) Dark Patterns
Websites may use manipulative design techniques such as:
- hiding the “reject” button,
- making “accept all” more prominent,
- forcing users through multiple layers to disable tracking.
These patterns dilute voluntary consent.
(c) Lack of Public Awareness
Many individuals do not know:
- what personal data includes,
- how data brokering works,
- or how companies monetise information.
- Without awareness, consent cannot be meaningful.
(d) Excessive Data Collection
Some companies collect much more data than required. This creates consent fatigue and weakens the integrity of the system.
These challenges require stronger regulation, public education, and ethical business practices.
Conclusion
As digital interactions become inseparable from daily life, protecting personal data is now a universal necessity. Amid rising incidents of surveillance, profiling, and data misuse, consent has become the backbone of digital privacy. It empowers individuals to decide how their data is collected, used, and shared, ensuring transparency and fairness.
Frameworks like India’s DPDP Act and the EU’s GDPR reinforce the idea that privacy is not a luxury but a right. Yet the real challenge lies in ensuring that consent remains meaningful—not buried under complex policies or manipulated through dark patterns.
With ethical technology, clear communication, and strong legal enforcement, consent can transform the digital space into an environment where autonomy and dignity remain central.
Frequently Asked Questions (FAQs)
Q1. What is consent in data protection?
A voluntary, informed, and specific agreement allowing the collection or processing of personal data.
Q2. Can companies process data without consent?
Yes, but only in limited scenarios such as emergencies, legal duties, or court orders.
Q3. Can I withdraw my consent later?
Absolutely. Under both GDPR and DPDP Act, withdrawal must be as simple as giving consent.
Q4. Is implied consent acceptable?
Generally no. Modern laws require explicit and clear consent.
Q5. What happens if companies ignore consent rules?
They face heavy penalties—under the DPDP Act, fines may reach ₹250 crore, while the GDPR allows penalties up to 4% of global turnover.
References
- Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- Shreya Singhal v. Union of India, (2015) 5 SCC 1.
- EU General Data Protection Regulation (GDPR), 2016.
- Digital Personal Data Protection Act, 2023 (India).
- Google Spain SL v. AEPD, C-131/12, ECJ (2014).
- In re Facebook, Inc. Consumer Privacy Litigation, FTC Order (2019).
Author: Bhoomika Jain,
Law Student and Intern at My Legal Pal
