A new decision by the United Kingdom’s high court says that even if you have cookie and marketing consent mechanisms that are sufficient for valid consent under privacy laws for the general public, they may not be enough for consent by gamblers, whose autonomy is diminished due to their condition.
The court gives little by way of a solution, but does mention safe gambling mechanisms together with really ensuring your disclosures are clear and user friendly and your consent mechanisms are solid.
Some more detail:
- If an individual makes a fully autonomous choice to limit the quality of their own consent — for example by choosing not to engage with information which is readily available and accessible — and so executes a permission which is subjectively ill-informed and misunderstood, there is no inevitable compromise of their autonomy in attaching legal effect to that choice.
- Some processing of personal data is sufficiently invasive (cookies are a form of surveillance of personal activity) or intrusive (direct marketing imposes itself on personal attention) to be unlawful without an individual’s autonomous submission to the compromises of personal autonomy, which they intrinsically involve. But individuals’ freedom to make that autonomous submission, and decide how to make it, must itself be respected.
- But all of that is consistent with an ineradicable minimum of cases where the best processes and the most robust evidential provisions do not, in fact, establish the necessary presence of autonomous decision-making, because there is specific evidence to the contrary.
In the case of a gambler:
- a person may not be engaging with any of the consent mechanisms. He just felt compelled to gamble, at any price – whether financial (in so far as he was able) or in terms of his own privacy, personal autonomy and family life. He would have — he did — say yes to get past anything and everything capable of delaying or impeding his access to gambling. He deceived his wife, begged from his family and friends, gave over all his money and clicked away his personal information, obliviously. And while the other matters were contextual, his clicks were intimately bound up in real time and space with his consumption of online gambling.
- This can lead to a lack of subjective and objective consent.
