Private Law Theory

ABSTRACT
We live in an era of almost infinite digital interactions, many of which involve risks to our rights stemming from various problematic practices, such as data-protection infringements, user profiling, and consumer protection violations. Currently, the protection of digital consumers against these risks rests primarily on a ‘notice-and-consent’ regulatory model: users are legally presumed to have consented to the terms of service (ToS) and privacy policy agreements (PPAs) of the digital services they use. In reality, despite the gravity of the risks involved, users commonly fail to study these binding agreements. Thus, it is widely accepted that this model is ineffective at safeguarding online consumers’ rights, yet no viable alternative has emerged.

This Article systematically analyzes the drawbacks of previous suggestions for improvement, proposing a novel alternative regulatory mechanism: the Risk-Focused Due Diligence (RFDD) Tool. This involves two innovations. First, it creates comprehensive and comprehensible quantitative metrics that users can consult in assessing the risks posed by a given digital service, via a User Data-Protection Index. Second, while all current models disproportionally burden users with the costs of having to understand reams of ambiguous legalistic notices, the proposed tool splits the regulatory burden between users and digital service providers. It places responsibility on service providers to complete a due diligence questionnaire that clarifies the risks associated with using their digital services. Responses are then subjected to robust external verification and accuracy-enforcement mechanisms. The RFDD Tool thus represents a regulatory paradigm shift by rendering digital service providers accountable for effective notice, and empowering digital consumers by providing a transparent means to provide informed consent.

Bar Fargon Mizrahi, Empowering Digital Consent: A Risk-Focused Due Diligence Tool (February 16, 2024), Cardozo Arts and Entertainment Law Journal, volume 43 (forthcoming 2024).