‘Consent’ is a key notion of ethical marketing. You are prompted for it every time you visit a website, install an app or order a product online. But where is this consent notion coming from? Answering this question is important: it gives us hints on the initial intents of its creators and will allow us to assess if the way we use consent today is still aligned with this initial spirit.
So, where is ‘informed consent’ coming from anyway?
It may come as a surprise, but this notion originated from the medical industry, following the infamous Tuskegee Experiment (USA, 1932 – 1972).
The initial noble goal of this experiment was to understand the then incurable disease of syphilis. Hundreds of black American tobacco croppers were studied, to understand the evolution of the disease in the hope of curing them.
But in 1947, when it was found that penicillin cured syphilis, the doctors of Tuskegee decided not to inform their patients, nor to cure them. They let them suffer and ultimately die, in order to continue their research. This went on for … 25 years, until whistleblowers leaked the horrible truth to the press.
Of course, the experiment was immediately closed, and protections were put in place so that this kind of abuse could never happen again.
There were two of those protections:
- The ’informed consent’ process: a new process destined to explain the experiment to the patients. To re-inform them any time the situation of the experiment would change. To let them decide without coercion if they wanted to participate or not. To let them retract their agreement at any time without having to justify themselves. All this with an explicit signing of the protocol.
- The Institutional Review Board: an official board mandated to monitor the informed consent process, to assess the benefits and the harms of each proposed study, and to be responsible for the final approval of each study involving human subjects.
Does this ring a bell? Well it should, as with the years, these two processes migrated from medical studies to psychological studies, from psychological studies to computerized studies, and from computerized studies to the internet.
Our current user consent, with its mandatory terms & conditions, its explicit opt-in and the right to opt-out at anytime is the grandchild of this original medical ‘informed consent process’.
And our national Data Protection authorities (the Belgian DPA, the French CNIL,…) are the marketing version of these initial Institutional review boards.
But are they as efficient as their medical predecessors?
The current limitations of informed consent
Studying the spirit in which the informed consent process was initially created directly shows a problem: the speed of the process in our digital marketing environment has nothing to do with the speed of the medical process.
Initially, informed consent implied:
- Informing the patient
- Give him the time to process the information before accepting
- Allow some time before starting to collect experiment data
Time to think was an important part of the equation. But this is not true anymore today:
- Information is now hidden in terms and conditions on another webpage of the site. Often, consumers can accept the terms of data collection without having to look at them.
- When the user arrives on the website, his decision process is already over. He decided for this website or this service rather than the competition. The probability that he will change his mind after reading the terms is very small. He is somehow tricked into accepting.
- Most of the time, data is already collected even before the person accepts the terms and condition.
We can therefore ask ourselves the question: is consent today still informed & voluntary? Especially if the terms and conditions we are supposed to read before taking our decisions take more than 40 minutes to read (like, for example, Spotify, Wikipedia, Amazon, LinkedIn…)
The current situation of online consent shows a desynchronization between legal & consumer expectations:
- The process, used on the whole internet ecosystem, is seen as compliant to the legislation: it is informed, voluntary & contextualized.
- But according to consumers, it is not transparent enough (as nobody has the time to read the terms), feels mandatory to access the site, and seem to allow too much repurpose once the data has been gathered.
There is a huge gap between what legislation tolerates and what the consumer wants. How can we bridge this gap?
Ethical opportunities in informed consent
You can continue doing the minimum to respect the law. Or you can try to do more to respect the consumer expectations and differentiate yourself from the competition.
Here are a few opportunities:
- Create clearer Terms & Conditions
Use a shorter & text. Try to write it in common language rather than legal one, so that everybody understands, not just lawyers.
- Try to be visual
Use pictures to describe the usage of the data. Take inspiration from nutrition labels. Use design thinking to convey your message in the simplest way.
- Allow an easy change of mind
Make informed consent reversable. Let the withdraw process be as easy as the consent one. There should be a symmetry between the two processes.
- Make use of preference centers
Consent shouldn’t be a global ‘Yes’ or ‘No’. Give the consumer access to a dashboard where he can customize what he accepts and what he refuses. And of course, update this dashboard in case of new purposes!
- Use a data platform that automatically assess the state of consent for all your consumers
Control in real time the status of each of your consumers, and avoid legal complaints
By implementing these opportunities, you will:
- Give more respect to your consumers
- Receive more love from them in return
- Create stronger bonds with them
- Create a competitive advantage
Ready to make your informed consent better?
Next on ethics in this knowledge channel : extra opportunities in the field of privacy
See also : blog 1 – An introduction to data ethics blog 2 – What are ethics anyway? blog 3 – Ethical opportunities