Abstract

Targeted advertising is one of the less discussed topics within legal analysis and and even lesser known are the legal harms inscribed within the structural framework of targeted advertising. This article first conceptualizes targeted advertising within the legal framework of informational self determination and then critically analyses the structural irregularities in the adequacy of consent centrism in tackling them. The notice and consent mechanism evolved in the DPDPA does not adequately prevent constitutional harms amidst existence of high knowledge and power asymmetries in modern digital market place. The article then delves into a comparative analysis of the multilayered consent framework of the GDPR and its efficacy in solving persisting legal problems under the DPDPA. The DPDPA essentially relies almost completely on consent for legitimising data processing particularly in the absence of strong supervisory mechanisms. However, under the GDPR, consent is not the sole legitimising principle for data processing rather it functions within a broader framework of multiplicity of doctrines, principles and supervising and oversight authorities to provide holistic rights based approach and reducing risk burden on users by reducing reliance on consent mechanism. The article argues that users are in no position to meaningfully consent in structural market asymmetries, thereby lack of other ex ante measures under the DPDPA must be revised as a way forward.

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