Data PrivacyInfluence or Manipulation in Consent of Data Principal – A thin line of demarcation

Consent is the cornerstone of most data protection frameworks globally, including India’s Digital Personal Data Protection Act, 2023 (DPDPA). Under this law, obtaining valid and informed consent from the data principal (the individual whose personal data is being processed) is critical.

However, with the rise of sophisticated digital interfaces, subtle techniques of influence and manipulation often undermine the integrity of this consent. This article explores the fine line between influence and manipulation in obtaining consent under DPDPA and the implications for data privacy.

Importance of Consent Under DPDPA

Under DPDPA, consent is required for most data processing activities, and it must meet certain key criteria to be valid:

1. Free: Consent must be given voluntarily, without any coercion or undue influence.
2. Informed: The data principal must be provided with clear, comprehensible information about the purpose and scope of data collection.
3. Specific: Consent should be specific to the data being processed for a particular purpose.
4. Unambiguous: There should be no doubt about the individual’s consent, meaning that it must be obtained in a clear manner, often via affirmative action (e.g., checking a box).
5. Unconditional : There cannot be a condition put while obtaining the consent from the Data Principal.

However, in many cases, companies use dark patterns and other manipulative techniques to influence the user’s decision-making, making it difficult for data principals to freely exercise their rights.

Influence vs. Manipulation in Consent

It is often claimed that there is a thin line of demarcation between Influence and Manipulation in acquiring consent of Data Principal.

1. Influence: Influence in the context of consent refers to the use of persuasion or guidance that still respects the data principal’s autonomy. For example, designing a user-friendly consent form that clearly explains the implications of sharing personal data can help users make informed decisions. Influence respects the individual’s freedom to either consent or deny, based on a clear understanding of the data practices involved.
2. Manipulation: Manipulation occurs when the data principal is led to give consent in a way that does not respect their autonomy or understanding. This can happen through dark patterns, complex interfaces, or misleading information. The goal of manipulation is often to achieve compliance (consent) through deceptive tactics, without the data principal fully realizing the implications of their actions.

Manipulation undermines the entire principle of informed consent, as the data principal is not fully aware of the choices they are making. This can lead to non-compliance under DPDPA, where consent must be freely given, informed, specific, and unambiguous.

Dark Patterns in Consent Acquisition

Dark patterns refer to the deceptive design techniques that manipulate users into making decisions they wouldn’t normally make. These patterns can directly affect the validity of consent under the DPDPA. Some common dark patterns include:

1. Deceptive UI Design:
2. Forced Consent (Take-it-or-leave-it):
3. Scroll Fatigue:

Legal and Ethical Implications Under DPDPA

1. Regulatory Requirements: Under DPDPA, Section 6 outlines the requirements for valid consent. The data fiduciary (the entity processing personal data) must ensure that consent is free, informed, specific, unconditional and unambiguous. If any form of manipulation or deceptive practices is used to obtain consent, the fiduciary may face legal consequences, including fines and penalties.
2. Role of the Data Protection Board: The Data Protection Board of India, established under the DPDPA, has the authority to investigate complaints regarding non-compliance, including those related to the manipulative acquisition of consent. Data principals can lodge complaints if they believe their consent was obtained through manipulation, leading to potential penalties for the offending party.
3. Penalties for Non-Compliance: If the Data Protection Board finds that a data fiduciary has used manipulative techniques to obtain consent, the organization could face significant penalties, including penalties that can go up to ₹250 crore depending on the severity of the breach.
4. Ethical Responsibilities: Beyond regulatory obligations, organizations have an ethical duty to respect the privacy and autonomy of individuals. Ensuring that consent is obtained transparently not only builds trust but also strengthens long-term relationships with customers and users. Ethical handling of data consent enhances a company’s reputation and can become a competitive advantage in a privacy-conscious market.

Conclusion: Striking a Balance Between Influence and Autonomy

In the digital age, consent is more than just a checkbox—it is the gateway to an individual’s personal data.

The Digital Personal Data Protection Act, 2023 (DPDPA) places great emphasis on ensuring that consent is not influenced or manipulated in ways that undermine the rights of the data principal. While nudging and influence can play a role in simplifying complex decisions, the use of dark patterns and manipulative consent mechanisms directly violate the principles of free and informed consent.

For organizations, respecting the autonomy of data principals is not just a legal requirement under DPDPA, but an ethical imperative that fosters trust, transparency, and long-term success.

To know more or discuss on the Influence or Manipulation in Consent of Data Principal – A thin line of demarcation, connect with dataprivacy@amlegals.com or info@amlegals.com