Private Law Theory

ABSTRACT
Consumer privacy law is grounded in the paradigm of individuals’ control over their personal data. Controllers are expected to publish privacy policies, and individuals are expected to ‘self-manage’ their privacy. However, empirical studies demonstrate that consumers do not read privacy policies and that these documents often do not contain the information necessary to engage in self-management. These empirical findings can inform two, seemingly opposite, sets of policy prescriptions. On the one hand, there is consumer ’empowerment’, making privacy policies easier to read or even creating technical tools for assisting consumers in their choices. On the other, there are calls for replacing the individual control paradigm with hard regulation. This chapter discusses the empirical studies on consumer online privacy and scrutinizes various strengths and weaknesses of these possible reform paths. Ultimately, it holds that even though empirical data and normative scholarship can illuminate the understanding of the problems and help with assessing the expected efficacy of reform means, the choice of consumer privacy law reform goals will, to a large extent, remain political.

Pałka, Przemysław, Consumers, online environments, and privacy (September 2, 2024) in Empirics and Consumer Law in Changing Markets, G Veldt, K Heidary and V Mak eds, Edward Elgar Publishing (2025, forthcoming).