DATA PROTECTION BEYOND CONSENT: CONTEMPORARY TRENDS IN MATERIALIZATION

This paper highlights the need to reshape the focus on "notice and consent" as the main regulatory instrument in data protection. Therefore, we briefly outline three aspects that show its insufficiencies: (i) cognitive limitations, (ii) bargaining powers, and (iii) contemporary data processing and analysis techniques such as Big Data. Instead of claiming the "end" of notice and consent, we conclude that it is essential to reshape it in light of other available regulatory instruments and bearing in mind the multiple stakeholders involved. Hence, by analyzing contemporary data protection legislations and recent academic developments, we briefly set out three approaches that can be useful in that way: (i) data protection by design and default; (ii) risk analysis and accountability; (iii) limitations on consent that are responsive to the central values at stake and its particular context.