Informed consent

The Australian Communications & Media Authority (ACMA) has released a 66 page report regarding Community research on informed consent [PDF].

The report -

presents the findings of qualitative research into community attitudes, perceptions and understandings of rights and responsibilities in relation to informed consent across a range of communication platforms. The research focused specifically on issues with consent and privacy relating to digital communications within a transactional context.

The document follows Community research into broadcasting and media privacy, another study for ACMA regarding "community perspectives about informed consent and privacy issues that arise in broadcast news and current affairs programs, radio competitions and the digital media context".

The authors of the current report comment that -

Informed consent, as a legal concept has various meanings, depending on the legislation and circumstances in which the term is used. While the research took into account the way that informed consent is defined in communications legislation and regulation, it was not intended to examine consumers understanding of the legal concept. Rather, the research specifically aimed to explore the consumer experience of providing informed consent in various situations and to understand community attitudes towards consent issues more generally.

This research will assist the ACMA when assessing issues that arise in the communications sector around obtaining consent for contract formation, subscriptions services and use of personal information. The research findings are also intended to provide the ACMA with a rich understanding of community perspectives when providing advice to industry, government and other stakeholders on related subjects.

The report is based on 14 discussion groups (six to eight people aged 18 years and over from metropolitan and regional areas in New South Wales, Victoria and South Australia) considering scenarios with "realistic situations involving giving consent", eg a financial agreement with a company in return for goods and services, provision of personal information in return for a service or potential gain (such as for surveys or competitions) and provision of "permission for others to make decisions or use their skills on their behalf, such as medical providers".

The objective was to explore attitudes in relation to communication services regarding -

• what 'informed consent' means

• perceptions of the opt-in process (opt-in/opt-out) across various technologies and services

• the decision-making process that is associated with providing informed consent and inferred consent, including the length of time for which consent is valid across a range of situations

• issues associated with giving consent and privacy issues, sharing information within organisations and with third parties

• providing consent on other people’s behalf eg parents for children

• common concerns consumers have across a range of products and services relating to informed consent

Key findings were -

‘Understanding’ and ‘comprehension’ of the agreement are essential to ensure ‘informed’ consent can be given
A number of factors relate to ‘understanding’ and whether a consumer feels they can give informed consent, including -

• understanding the terms and conditions

• accessible language being used

• information delivered in an accessible format and layout

• a non pressured environment

• feeling comfortable and able to ask questions if they do not fully comprehend.

Participants believed that informed consent relies upon both the company and the consumer having a thorough understanding of the situation. Thus, they believed that a company has a responsibility to provide the full information to the consumer. In turn, a company has a right to expect that, in order to feel informed, consumers have understood the information should they agree. Consumers also recognise they have a responsibility to understand the information to which they are agreeing.

Providing ‘consent’ versus ‘informed consent’
Consumers perceived there to be a clear difference between providing ‘consent’ and ‘informed consent’. They identified that they often gave ‘consent’ but claimed that in reality it was not always ‘informed consent’, as they defined it. This is because they often provided consent without a full understanding and comprehension of the terms and conditions of the agreement.

Perceptions of ‘risk’ affect people’s attitudes and behaviour as to whether they want to feel fully informed
Consumers readily admitted that they often chose not to read or listen to the terms and conditions, and, therefore, be fully informed. Many respondents provided examples of instances when they -

• scrolled to the end of the webpage without reading terms and conditions

• clicked the box without reading the offered information

• became distracted or bored and chose not to read blocks of text or listen to a salesperson.

In these instances, consumers felt comfortable that they had not informed themselves of the terms and conditions because they perceived few, if any, negative consequences relating to financial or personal details being compromised.

Yet in situations that appear more ‘risky, consumers endeavour to fully understand and comprehend the terms and conditions to ensure they are ‘informed’. These situations included

• when substantial finances are involved, particularly ongoing contracts with a set period of time where they want to know the ongoing and maximum costs

• when detailed personal information is required and there may be a risk of personal privacy being compromised

• when the brand or company are seen to be more ‘risky’ and there may be more to lose if they are unscrupulous.

Consumers recognise that companies often make it difficult for them to provide informed consent

Consumers recognise that it was not always easy to give informed consent.
In some instances, they believed that companies purposely make it difficult for consumers to comprehend the terms and conditions. Many reported instances where they did not provide informed consent, because -

• the language used made the terms and conditions inaccessible, with the use of legalese or technical, unfamiliar phrases

• there was too much information in the terms and conditions to comprehend at once, particularly when provided over the phone

• the environment meant they felt pressured or rushed.

Consumers have a real issue when they feel the option of choosing whether they want to provide ‘informed consent’ is taken away from them.

Generally, consumers accept they have a significant role to play in ensuring their consent is informed. They recognise they have a responsibility to understand the terms and conditions of the agreements they are consenting to. They believe they should have a right to make the choice to access and read the terms and conditions before providing consent or not.

The real concern arises when consumers feel they do not have a choice as to whether they can provide ‘consent’ or ‘informed consent’. Thus, it is when information is not provided by the organisation, or not provided in an accessible format, that consumers believed consent can never be informed. Consumers can feel disempowered in these situations as they feel the power lies in the hands of the organisation with which they are dealing.