(mis)Informed Consent in Australia (Report for iappANZ, 31 March 2021)

Abstract

Consumers expect the law to protect them when it comes to how data is collected, shared and used. This report explores the notion of ‘informed consent’ in relation to commercial dealings with consumer data and its effectiveness to appropriately protect individuals under the law in Australia. It discusses aspects of informed consent in the context of the current legislative and regulatory framework regulating such dealings, and recommends changes to regulatory and legislative frameworks that deal with consumer data handling and standard form agreements. This report sets out the research and critical analysis of three UNSW scholars. Each of these scholars provides their own unique insights relating to the interdependencies between the law, current business practices, consumer expectations, economic, social and behavioural considerations in the context of notions of informed consent and standard form agreements. In exploring these issues, these scholars have explored the legislative frameworks created by the Privacy Act 1988 (Cth) and the Competition and Consumer Act 2010 (Cth), and also considered the impact of Australia’s regulatory framework, including enforcement practices of the OAIC and the ACCC.