Consent- Much Ado about half a thing
Honestly, as a lawyer, I’m used to this. This is how its always been.
People pay attention to what we are saying, only when things go wrong. (…Looking at my 2am friends, the irony here is not lost on me…).
But when the distress and concern is this myopic, it really makes you wonder — are we getting our messaging wrong or merely getting sucked in by popular opinion.
The myopia around consent in contracts is the subject matter of this rant. Welcome.
Concerns abundant
Consent has percolated our everyday vocabulary.
All anyone can talk about is how websites and apps seek our consent in capturing our data without informing us of the consequences- be it at every Starbucks café, board room, tech conference or a popular Netflix special.
Let me be clear, these concerns are valid- the violation of our data privacy is a serious problem. That is growing.
But My concern is this- and I’ll say it slowly for the people at the back –
Consent is not a problem only in online data privacy contracts. Privacy contracts are but one of the many contracts that you enter into, be it at the bank, the school or with your landlord.
And Informed consent is absent in many contracts today — the effects of which are much more immediate and can be clearly identified.
What is consent?
Consent is defined as a voluntary agreement to another’s proposition. It is effectively you agreeing to a contract- any contract.
And Informed Consent is the idea that one should be well informed about what they are agreeing to.
These are not specific to data privacy contracts on a website or an app.
Why do I care?
I bring up this story often because it cemented my thoughts on the subject and was the seed of the work at Project Kish.
In Dec, 2017, the Wire published an article about a 75 year old man in Udaipur- who put his life savings towards,what he thought was, a fixed deposit to live off the interest earnings. It turns out that what he signed on for, was in fact an insurance contract and his savings went towards a One Time Premium of that insurance.
This isn’t complicated. And certainly isn’t as complicated as a breach of data privacy.
The asymmetry in information availability was able to induce a man to part with his life savings, willingly.
And this is not an isolated incident. Farmers signing over the ownership of their land without meaning to, EMIs with increased interest rates and substantial penalties or even skewed rent contracts- have all become part of the urban folklore of a nation.
Why this hasn’t caught more attention…I actually don’t even want to know.
The Solutioning…?
This is a call out to policy makers, industry leaders and the best legal minds that are trying to address this.
Why have we come to the point- where we are harnessing our collective resources towards solving for consent ONLY for data privacy contracts.
At the very least, this is a seriously missed opportunity.
As lawyers, we have a lightning in a bottle moment, where the average Joe is suddenly interested in what we are saying and CEOs of companies are paying attention to the fine print that they put out- but only in relation to a specific type of contract- data privacy.
It is up to us to get the focus wider- on all types of contracts across all spheres of life.
Conclusion
To the people leading the charge on the conversation- the policy makers, documentary film makers or the Starbucks barista- the sex appeal around the data privacy conversation isn’t going anywhere.
But, we can also ride this wave to educate on the larger idea of informed consent across the board. In All contracts.
To my part I’m keen to activate Project Kish into a useable product that can help a lay person navigate important contracts beyond barriers of language and literacy.
And I sure would like to see more people try.
End Rant.
