Experts say that due to the vagueness of GDPR, many publishers may be breaking the law by trying to get around the requirement to obtain explicit user consent
The arrival of the General Data Protection Regulation a month ago led to a flurry of activity, clogging email inboxes and flooding people with tracking consent notices. Tweets: @katebevan Tweets: Kate Bevan BA / @katebevan : You don't necessarily need explicit user consent to process data. How many times do we have to say this? http://twitter.com/...
Context & Ripple Effects
A month into enforcement, GDPR has moved from abstract threat to daily friction: companies flooded EU residents' inboxes ahead of the deadline with consent emails experts called unnecessary and sometimes illegal, and publisher trade groups attacked Google's plan to collect consent for its own ads as falling short. Now legal experts are flagging the opposite failure mode — publishers so eager to avoid asking for explicit consent that their workarounds may themselves breach the law.
First-order effects
- Publishers relying on consent-avoidance tactics face direct legal exposure under a regulation whose vagueness cuts both ways — unclear obligations invite both over-compliance and unlawful shortcuts.
- As Kate Bevan argues, explicit consent is not always required to process data, meaning some publishers are spending on consent flows they don't legally need while others skip consent where they actually do.
Second-order effects
- Ad-tech intermediaries are pulled into the dispute: Google's contested consent proposal already drew fire from 4,000 publishers, and any enforcement against publisher workarounds will push liability questions down the ad-serving chain.
- The ambiguity creates demand for compliance intermediaries — privacy tech vendors and legal advisers who interpret the gray zones for publishers unwilling to guess.
Third-order effects
- If the pattern holds, consent mechanics become the battleground rather than data collection itself — a trajectory later borne out by a study finding most EU cookie consent forms violated GDPR's informed-consent standard through pre-ticked boxes and hidden reject options.
- Vague rules plus high compliance costs favor large publishers who can afford interpretation and tooling, consolidating the market against smaller operators.
The trend: GDPR is turning user consent from a legal checkbox into an adversarial design problem, with publishers, platforms, and regulators fighting over who obtains it and how.