In the current regulatory landscape, consent is the primary legal mechanism for data processing. Global regulations like GDPR, CCPA and DPDP act have standardized the use of “consent”. Organizations have increasingly adopted automated CMPs however; these frameworks only perform legal box ticking. Just because you have permission to hold data doesn’t mean you are handling it responsibly. You can legally collect an Aadhar card number, but if you don’t store it well, the “legal basis” won’t prevent identity theft. Over relying on consent unfairly shifts the burden of risk onto the user. Management may see a 90% consent rate and think their data program is “healthy,” ignoring the fact that their backend architecture is vulnerable to leaks.
That’s the reason we should concentrate on technical compliance which can mask privacy vulnerabilities. This article suggests shift from mere consent as a remedy to the essential structure of “Privacy by Design” and stringent technical measures like privacy enhancing technologies (PETs).
The Philosophy of consent can be found in the roots of Indian Contract Act, 1872. Section 13 of this act defines “consent” as the foundation of a valid contract. It states that two or more persons consent when they agree upon the same thing in the same sense, a principle known as consensus ad idem‟. This “meeting of the minds” is essential for a contract to be enforceable. Section 6 of the DPDP Act, 2023 defines the requirements for valid consent, requiring it to be free, specific, informed, unconditional, and unambiguous, given through clear affirmative action. It ensures consent is limited to the necessary data for a specific purpose and includes the right to withdraw consent easily. Regulatory bodies like the EDPB have clarified that the employer-employee relationship is a classic example of power imbalance. GDPR Recital 43 explains why consent is often considered invalid when there is a significant power gap. This clearly signifies that only consent mechanisms don’t give you technical remedy to safeguard your data. You surely need more robust data protection measures.
The main purpose of data privacy is to prevent leaks and misuse. Privacy program should prioritize technical and organizational measures. Technical measures, such as end-to-end encryption and on-device processing, establish a security ceiling that protects user privacy through system architecture rather than consent-based policies. These structural barriers ensure data safety regardless of user settings.
We should also invest our efforts and coinage in tools which perform automatic data deletion once purpose is met. There are additional technical measures which are of utmost importance like De-identification using hashing or masking, so data isn’t useful if stolen. Using ‘Least Privilege’ techniques, MFA, TLS, SSL for data moving across borders. Section 6 of DPDP Rules talks about “reasonable security safeguards” such as securing of personal data through obfuscation, use of virtual tokens mapped to that personal data. Obfuscation is the deliberate act of making communication, data, or computer code difficult to understand, often using ambiguous language and jargon to hide intended meaning. Also managing logging and auditing is considered very critical to track who accessed what data and when. If we implement all such measures, then probability of data breach gets least.
