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Online Consent In India And Global World: Is It A Threat Or A Facade

The Internet has become significant part of the life of the general public, and most part of the life has gone in an online environment. People work, and study through the medium of internet. Everything is connected through internet. People use the cyberspace for various endeavors and for that they various websites, these sites require some sensitive information this information requires consent.

There are many factors go into when considering online platforms, but consent is one of the major one. The meaning of consent is permission being granted for something. Consent is required by website host from the persons who are accessing them.

Online Data Protection norms have become very essential for the normal life and consent plays big part in that[1]. Whenever a person uses any online services or social websites, they must provide their personal details which can be dangerous used against the person itself.

Online consent has become very easy to obtain by website hosts or data controllers (website owners who obtain information from people accessing their websites for specifics services). The people who access these websites are called data subjects and the data subjects are the focus of the data controllers. The concept of consent is very controversial in nature, it is very difficult for the court to pinpoint the liability in these cases.

Because environment is so diverse and there is no territorial boundaries in this format so the jurisdiction also becomes quite a challenge to court. Online consent is being explored as part of data protection law but many countries a at a loss since that they are not able establish any concrete and stable provision which cover this problem the state who has the most stable and most efficient statue is European Union and Its statue of European Union General Data Protection Rules (EUGDPR).

Most of the states that are trying to establish a law are taking EUGDPR as a base document for this legislation. EUGDPR also fails to establish a effective Consent legislation. The online consent given in the EUGDPR developed so much because of the experimental study. The Online consent is still having a lot of flaws as a protection measure.

The Laws in UK, US and India regarding online consent is not developed as it is in European Union. The UK has a Data Protection Law in place, but it is not as developed as European Union. The use of internet also has evolved in these countries and major part is teenagers. An act came to USA in 1998 Children's Online Privacy Protection Act which protects the teenagers of 13 years and above from online medium. This act restricts some of their online freedom and put the parents in some control.

This act had many flaws as it appears to more preserve. This act had many flaws as it appears to more preserving children than protecting them, where parents try to keep children accessing internet completely instead of helping them in learning it[2]. Parents keep a tab on their children through this legislation. In also online consent is not in a good position, since India doesn't have proper data protection law setup. India had many attempts in the past for statute of Data Protection, but all the commissions formed were not able to pin down something concrete.

It 2017 a committee was formed which dealt with the idea forming the data protection law in India in its report it did suggested laws based on general data protection principles, but they were never implemented. A bill is in works in India which might become data protection statute.

The Development of consent in online environment also have evolved in EU and probably online consent is most refined in EU framework of Data Protection. The EU framework introduced two new type of consent informed consent and privacy nudges. Informed consent is where the data subject is before giving for any service or product can read terms and conditions of website, it written in plain and simple language. But the issue with this approach that data subjects or people are sometimes unwilling to read so big privacy policy terms that makes them lose interest.

The data subject rather giveaway is privacy than reading heavily informative documents. This also becomes less effective[3]. The informed consent document contains so many provisions and rules that it is hard to cope up. The language of these documents also sometimes very hard to understand that a lay person does not understand the policies completely.

The Privacy Nudges is a sort of experimental system where the law evolves with cases and situation that comes into the court. But the issue with this is it taking too much time and at the cost of a lay person misery[4]. The privacy nudges and informed consent also took years before these concepts got perfected in the eyes of law. Also, in other countries this concept has come into question, but these few countries are close to do crack this code. Can there be a system that globally possible and applied anywhere in the world?

Aim And Significance
The aim of this research is to identify the problem that. Firstly, why there is no proper data protection laws in India. Secondly, can there be coherent legal system where every state in the world can ably cooperate with minimum resistance.

Thirdly, can the data protection strategy will be followed by the layman, that will they accept it and follow or throw away their privacy again as in informed consent. The legal research will try obtaining a global perspective on the concept of consent online with a stable a Data Protection in India because a law is no use if it cannot function flexibly.

The paper will focus mainly on how eliminate common threat of online consent. It will try avoiding damages to data controller and data subject. This research is to find a way to bring data subject and data controller where they can solve the problems through negotiations without the need to go court.

Methodology
The methodology in this paper is comparative legal research methodology. The reasoning behind this approach is because countries like UK, USA and EU have quite developed their laws regarding this field. The consent in India is given up very easily to cope with this problem first is to curtail the consent problem even before a data protection law is implemented.

The comparative methodology is good way to approach because the law can be implemented by provisions of UK, USA and EU. The strategy here is that the way India has made the constitution of India where they combined parts of constitutions of different states and not completely copy the source material. The cooperative legal methodology with same pattern can also be applied globally where members of United Nations gathering at a place discussing this problem and using ideas of different states is a good way to approach.

The online consent needs this kind of attention because Covid-19 have pushed everything online and now most population prefer doing things online without the worry of their personal privacy because whatever they are going for becomes more important at that point of time. The scope of cooperative method is to analyze the data of other states provisions and find a way to improve upon and not steal them completely.

The comparative study points out the flaws of the original provision and kicker to it is that it does not have to even remotely same. The online environment developed keeps on developing with no near future to stop and since the online consent mostly ignored by common man the burden cannot be put on the data controller alone since the justice system is all about fairness, the European union framework on data protection puts more burden on the data controller than on actual problem, these kinds of explanations can be done in comparative methodology.

The states must realize the threat of online consent is very real and as much as dangerous as it can get the research can help things in perspective on how to control people's behavior without harming the integrity of the individual. The comparative legal study can elect approach of something known as 'collaborative consent'. In this consent will not be a one of situation it is a scenario where both data controller and data subject can communicate and find common grounds to deal with issue at hand.

This concept can be also used by International Court of Justice where the court mitigate between two parties without the fear and pressure of respective states that way parties are going to be in control of their own fate[5]. The court must come to a scenario where world governments will make peace on the idea of online consent and shared law where Court has most jurisdiction on this area of law a since Online consent does not have any territorial Jurisdiction.

The Online consent is very important part of the Data Protection law which is very wide pool. The situation is here many countries don't realize the threat of this even India also so, the world has to be aware of this situation and deal with it together.

Bibliography
  1. Andrea Slane and Ganaele Langlois, 'Debunking the Myth of Not My Bad: Sexual Images, Consent, and Online Host Responsibilities in Canada' (2018) 30 Can J Women & L 42
  2. Christina Nguyen, 'Monitoring Your Teenagers' Online Activity: Why Consent or Disclosure Should Be Required' (2016) 15 Seattle J Soc Just 261
  3. Jessica L Hubley, 'Online Consent and the On-Demand Economy: An Approach for the Millennial Circumstance' (2016) 8 Hastings Sci & Tech LJ 1
  4. Joshua Warmund, 'Can COPPA Work - An Analysis of the Parental Consent Measures in the Children's Online Privacy Protection Act' (2000) 11 Fordham Intell Prop Media & Ent LJ 189
  5. Maurizio Borghi and Federico Ferretti and Stavroula Karapapa, 'Online Data Processing Consent under EU Law: A Theoretical Framework and Empirical Evidence from the UK' (2013) 21 Int'l JL & Info Tech 109
  6. Paul Bernal, 'Collaborative Consent: Harnessing the Strengths of the Internet for Consent in the Online Environment' (2010) 24 Int'l Rev L Computers & Tech 287
  7. Shara Monteleone, 'Addressing the Failure of Informed Consent in Online Data Protection: Learning the Lessons from Behaviour-Aware Regulation' (2015) 43 Syracuse J Int'l L & Com 69
  8. Sheng Yin Soh, 'Privacy Nudges: An Alternative Regulatory Mechanism to Informed Consent for Online Data Protection Behaviour' (2019) 5 Eur Data Prot L Rev 65
  9. Wayne R Barnes, 'Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance' (2006) 39 UC Davis L Rev 1545

End-Notes:
  1. Jessica L Hubley, 'Online Consent and the On-Demand Economy: An Approach for the Millennial Circumstance' (2016) 8 Hastings Sci & Tech LJ 1, Content Downloaded from HeinOnline.com
  2. Joshua Warmund, 'Can COPPA Work - An Analysis of the Parental Consent Measures in the Children's Online Privacy Protection Act' (2000) 11 Fordham Intell Prop Media & Ent
    LJ 189, Content Downloaded from HeinOnline
  3. Shara Monteleone, 'Addressing the Failure of Informed Consent in Online Data Protection: Learning the Lessons from Behaviour-Aware Regulation' (2015) 43 Syracuse J Int'l L & Com 6, Content Downloaded from HeinOnline
  4. Sheng Yin Soh, 'Privacy Nudges: An Alternative Regulatory Mechanism to Informed Consent for Online Data Protection Behaviour' (2019) 5 Eur Data Prot L Rev 65, Content Downloaded from HeinOnline
  5. Paul Bernal, 'Collaborative Consent: Harnessing the Strengths of the Internet for Consent in the Online Environment' (2010) 24 Int'l Rev L Computers & Tech 287, Content Downloaded from HeinOnline

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