Forget Consent? Answering The Challenges of Digital Spaces

GRIFFITH UNIVERSITY
GRIFFITH LAW SCHOOL
Social Science Research Network Legal Scholarship

Network
Griffith Law School Research Paper No. 21-10
Elizabeth Englezos
Forget Consent? Answering the Challenges of

Digital Space
Electronic copy available at: https://ssrn.com/abstract=3791056

Forget consent? Answering the
challenges of the digital space.
BY ELIZABETH ENGLEZOS1
Our world comprises of both material and immaterial

parts – the body within the material part, while data and
ideas in the other. Personal data coalesces to form a data
entity in the digital space. Attempts to address the
challenges of data proliferation continue to focus on
consent as a means to protect the material person’s
privacy. Yet, the digital space is vastly different to the
material space. This article builds on the semiotic
theories of Peirce and Saussure to position signification
as the cause for the failure of traditional consent in digital
space. The article concludes that the digital space
requires a specialized approach. It positions signification
as the potential locus operandi for future reforms and in
doing so invites further discussion.
Introduction
Our world comprises of both material and immaterial parts – the body
within the material part, while data and ideas in the other. As humans
“being” we exist in a material form within the physical space. Within that
physical space, we have context, nuances and a history based on temporal
events that influence our identity, who we are and whom we become. As
material beings, humans cannot occupy the immaterial space in-person and
it is within this immaterial space that the digital space exists. As physical
1
The published version of this article is available at in the Journal of Information Ethics
(2020), Vol. 29, Iss. 2, pp 46-69.

beings excluded from the immaterial space, humans cannot exist within the
digital space. Presence within the digital space requires the substitution of
the material person by something immaterial.
Online, individuals are represented according to the contents of their data
entity. A digital substitute is constructed out of this data and it is via this
substitute that the individual interacts online. Essentially, this substitute
becomes the actor, leaving the individual one-step removed from the forum
of interaction. Once the individual gives their initial consent, interactions
between this substitute and other third parties occur and continue without
the further involvement the individual. The following section begins with a
(re-)introduction to semiotic theory and the process of signification which
enables humankind to bridge the real-world-digital divide. The section, “A
challenge to autonomy” considers the quality of consent as provided by
material and physical person and its relevance to the digital space. Followed
by “What is consent?” which considers consent as a concession of power
and examines the challenges created by data proliferation. If consent exists
as a means through which the material person can delimit external access to
their person and personal materials, the power imbalance between material
persons and service providers in the digital space undermines consent so
that material consent becomes irrelevant within the digital space. The
article concludes that digital space requires a specialized legal and ethical
approach. It positions signification as a new locus operandi for legal
reforms and requires a reframing of digital information ethics.

Digital signs for real life.
If we are to get to the root cause of law’s failure to address the issues
presented by digital space, the translation of the material person into a
digital and immaterial sign demands closer attention. The material person
must undergo some form of signification to exist in digital space. According
to Daniel Chandler, a sign is something can be interpreted as “signifying”
something else (Chandler, 505). Without delving too deeply into semiotic
theory, one must first note a few things before we proceed.
Linguist Ferdinand de Saussure first used the terms “signified” and
“signifier” to represent a concept and its related sound pattern in his
“Course in General Linguistics” (Saussure, 1916).1 According to Saussure,
the signifier and signified combined or interacted to produce a sign
(Saussure, 2013 [98]). For Saussure then, the sign was the combination of
the idea of an object (rather than the object itself) and the word used to
denote that same object (Chandler 516). As the Saussurean sign is
commonly misapplied in contemporary discourse, it is important to spend
some time clarifying Saussure’s intent before moving any further forward.
As a linguist, Saussure states that language owes its versatility to the
arbitrariness of signs: “there is no internal connexion … between the idea
“sister” and the French sequence of sounds s-ö-r” (Saussure, 2013 [100]). It
is the arbitrariness of the letters s, ö, and r, as well as their order and
combinations with each other and other letters, that allows combinations of

sounds or letters of script to create all words and sounds that have come
into existence as part of language (Saussure, 2013 100-101). Saussure,
therefore, used a dyadic model of signifier and signified to explain how a
sign could be used linguistically to represent the idea of a particular object.
Charles Sanders Peirce, a philosopher and logician, focused on the effect of
signs. Peirce adopted a triadic model for signification (see Fig 1). The
Peircean model of object, representamen (similar to Saussure’s signifier)
and interpretant provided a mechanism to show the impact of interpretation
when considering a sign. Convention and context inform interpretation and
the impression generated by the sign.
Representamen
Object Interpretant
Fig 1. Peirce’s Model as a semiotic triangle2
For Peirce, the object referred to the object of signification, or that which is
referred to. The representamen is “something which stands to somebody

for something in some respect or capacity” (Peirce, 1931-58 2.228) and is
the equivalent of Saussure’s “signifier” or word (Chandler 856). The
interpretant is not the party that interprets the sign, but the impression
“create[d] in the mind of that person” (Peirce 1931-58 2.228).
Take, for example, the representamen “ə”. Some will see this symbol and
think of it as a phonetic symbol that assists correct pronunciation. Other’s
will know it specifically as the “mid central vowel” in the International
Phonetic Alphabet, while others may simply interpret it as an upside down
“e” and consider it to be an error. In each of these instances, a different
interpretant is presented, first a sound, second a phonetic device, and thirdly
an error.
This representamen produces different interpretants and are therefore
understood as signifying different objects. The object, depending on
context may form part of a dictionary definition, a phonetic device, or
printed on a piece of paper that we are viewing upside-down. Peirce’s
interpretant is shaped by context, community praxis, and convention and
informs our understanding of the object. For Peirce, the meaning of a sign
is “arises from its interpretation” (Chandler 908). Applying Peirce’s model
to the signification of the physical person in digital space provides us with a
new perspective of the power relations within digital space. This
perspective not only explains why the law of consent and privacy have
failed to adequately address the challenges of digital space, but also

illustrates the importance of a new specialized information ethics that
recognizes these power relations.
In the digital space, personal data3 coalesces to form a data entity. The data
entity is a formless repository that contains all data related to the material
person. Data is included in this data entity regardless of source or format.
From here, algorithms select and draw from available and readable data in
the repository to create a signifier. Many representamen are created. Each
depends on an algorithm. This representamen then substitutes for the
material person – not as they exist in the material space but as product of
algorithms and applied to a specific task, decision-making process, and so
on. Once substituted, representamen can interact with third parties in place
of the material person. These interactions shape who we are in a material
sense. Representamen also inform how we are perceived by others. The
content and opportunities we receive in the material space are also
influenced by signification. As data proliferates and increasing proportions
of interpersonal dealings occur online, representamen ascend to the position
of actor. Their interactions become more determinant than those of the
material person.
Attempts to address the questions of information ethics and the challenges
of data proliferation continue to focus on consent. “Consent” is a composite
of the Latin con (together) and sentire (feel or think) and indicates an
“accord” or a “feeling together” of the parties (Barnhart 1988). As a means

to protect the material person’s privacy, consent should provide material
persons with control over their data and its use (Englezos 2019). Today,
valid consent is informed by adequate knowledge, notice and provided by
choice. While consent’s Latin origins seem to imply that consent is
bilateral, material persons may withdraw their consent at any time. In this
way, consent is a unilateral act of concession to another, regardless of the
fact that in most instances, consent is exchanged by the parties to an
agreement.
Before progressing, a note on definitions. In this article, “data” refers to
raw data that is decontextualized and uninterpreted. “Personal data” is data
that relates to a particular person. “Personally-Identifying Information”
(“PII”) data links to an identifiable material person. “Content” is used
broadly to represent any published material – such as social media posts,
government blogs, news sites and so on. “Material consent” refers to the
ideal of consent and is informed by history, popular culture and doctrine.
“Appearance” is used metaphorically to indicate how a representamen or
material person appears to others in the digital space. Appearance should
be distinguished from “representations” material persons make about
themselves. In some instances, appearances and representations may be
similar, however, this will not always be the case. “Outcome” is used to
represent the results and consequences of algorithmic determinations or
automated decisions. “Signification” refers to the process by which a
representamen is created and substituted for the object. “Digital translation”

relates more specifically to the process of translating the physical person, as
object, into the physical space as a representamen.
This article builds on the concepts of Peirce’s triadic model to explain the
realities of the contemporary digital space. The diagram below (fig. 2)
builds on figure 1 by showing the division between the digital and physical
space (“digital-physical divide”). However, there is not one but two
interpretants in this figure. The presence of two interpretants highlights the
reality of signification within digital space – not only does signification
generate impressions in the digital space, signification may also inform
impressions in the physical space.

DIGITAL SPACE
Representamen
PHYSICAL SPACE
digit
al –
phys
ical
divid
e
Interpretant
Object
Interpretant
Fig 2. Peirce’s semiotic triangle in digital and physical space

Representation in the digital space is further complicated by the process of
signification. The physical person is not represented as a digital icon of its
physical self. Instead, the physical individual is translated into a separate
digital representamen according to algorithmic design. The following
diagram (fig. 3) depicts a simplified version of this process.

10
Data Entity Algorithmic Digital Impression created from
Modelling translation digital translation
60%
30%
* representamen x
10%
interpretant x
algorithm x 1
DIGITAL SPACE
70%
30%
* representamen y
interpretant y
algorithm y 1
25%
50%
* representamen z
25%
algorithm z
interpretant z
1
interpretantz
2
object interpretanty
2
interpretantx
2
Fig. 3 The role of algorithms in signification

Key:
PHYSICAL SPACE

Personal Data Government Data Sensor Data Data Broker
*
In the digital space, the object is either a source or subject of uploaded data.
Data accumulates to form a data entity from which algorithms select
particular data. Algorithms process selected data to estimate, measure or
predict the qualities of the physical person. Signification, therefore, depends
on data selection and the priorities of the algorithm involved.
In this diagram we see the production of three representamen from one data
entity. Algorithms have produced three different representamen based on
the same object (or, in this case, physical person) according to the
algorithm’s programming. As with algorithms themselves, the diagram
does not identify the data selected from the data entity. The algorithm
producing representamen x prefers passive modes of data collection (such as
those provided by data brokers (Û) and sensor data (r)) while still giving
some weight to government data (£). Representamen y relies almost
exclusively on the data available from data brokers (Û) and a smaller
percentage of sensor data (r), while representamen z gives equal weight to
selected personal data () and sensor data (r) while prioritizing government
data (£) above both of these.
Each representamen will differ from other representamen as well as the
object and produce different interpretants. Each interpretant creates a
different impression of the physical person through the process of
signification. These impressions of the physical person – their potential,
capacity, capability, trustworthiness and so on, exist as substitutes for the
physical person in digital space. Unrelated physical persons who receive
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these representamen in physical space will also form an impression of the
object as they exist in physical space albeit based heavily (if not solely) on a
digital representamen.
At first this analysis may appear an exercise in academic abstraction.
However, each of these interpretants will have some impact on physical and
digital outcomes for the material person.
This article does not claim that all forms of signification are unwanted or
negative, but argues instead for an awareness of the impact of algorithms on
the physical person. Until now, we have relied on consent as a means to
ensure the protection of personal autonomy. However, we have made little
headway despite numerous efforts to address the challenges of the digital
space through consent and privacy reforms. Consent fails because the
physical person gives consent to share their data, yet has no input or
oversight as to their use once signification has taken place.
The digital vs the physical space
The digital space is not easily defined. It seems infinite and ethereal and
consists only of the immaterial. Physical repositories store data in the
physical space – yet data’s value comes from its application outside of that
repository in immaterial form. Physical persons know that digitized data,
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content, or information becomes interminably available. Physical persons
are also aware that the replication or repetition of data occurs without loss
of quality. Interminability and high-fidelity reproduction are possible
because the digital space consists only of immaterial things. Immaterial
things can be accessible everywhere and anywhere almost instantaneously.
Most physical persons understand that their associated data or other
intangible property is open to unknown access by third parties. However,
the physical person will not know when such replication or access takes
place.
The concept of an immaterial and digital substitute may be difficult to
grasp. Nonetheless, we know that humans and other material beings cannot
exist in the digital space. Nothing material can. Presence in the digital space
requires translation of the material into a digital code or format in line with
the technology (Koch 2005). As a consequence, interpersonal dealings
increasingly occur in digital space and exclude the human form. In short,
interpersonal dealings in the digital space. An interpretant created through
algorithmic means lacks the sophistication, nuance and detail of the physical
person, yet we know that important decisions that influence the future of
physical persons are based on algorithmic determinations.
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A challenge to autonomy
To translate a physical person into a digital interpretant requires a degree of
dismantling of the physical person that fractures identity into numerous
unknown and incomplete derivatives. Accurate representation becomes
impossible but mediates subsequent data, information and content flows.
Before the first fracture of individual identity, data is stripped of context and
uploaded into digital space. Without context, the data loses nuance and
presents an already incomplete picture (see also Ibrahim 2017). Physical
persons cannot know which data is selected or whether this data (or its
interpretant) is accurate. Physical persons cannot erase data that is
misleading, embarrassing or damaging, or remove it from our data entity.4
Data is interminable and irretrievable and presumed to be true. The physical
person and their incorporeal essence are not accurately captured by data
points. As a consequence, potentially inaccurate data remains part of the
data entity and forms the basis of further determinations.
Alain Supiot refers to personality as “the generic concept in which body and
soul are held together (Supiot 2017).” However, translation into digital
space requires a separation of the two. Legal personality refers to our right
to develop our personalities and be recognized by others according to that
personality (Supiot 2017), but this is no longer possible. Individuals
construct their identity inwardly, but also outwardly through self-display
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(Belk 2013). Identity is not limited to our behavior. Our capacity to “keep a
particular narrative going” about ourselves allows us to define who we are
(Belk 2013). Physical persons are relatively free to represent themselves as
they see fit: as their ideal selves, aspirational selves, or possible selves (Belk
2013). However, the process of translation to digital form reduces the
physical person to representative (but incomplete) composite parts. Once
signified, the material person loses any control of their identity or
appearance.
Our data entity expands and expands as we upload more and more data.
However, the expanse of data is unwieldy. A context-dependent interpretant
has far more utility within the digital space. Algorithms are designed to
select the most relevant characteristics from the data entity according to a
specific context. Our financial signifier will be based on relevant to the
financial data (such as income, debts, assets) while our employability
signifier may depend more heavily on credit rating (Citron and Pasquale
2014), health (Peppet 2014), social media interactions and our address. The
number of available signifiers is limited only by the computations used to
them while the dataset continues to grow.
At the same time, automated decisions based on algorithms occur without
the physical person’s knowledge. The physicality of the person is redundant.
Once de-linked from the physical person, the interpretant becomes the actor.
Algorithms personalize content and opportunities and outcomes according
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to the interpretant. Consequently, this personalization provides the physical
person with a simulated digital version of reality. Physical consent is not
relevant or necessary because the physical person is no longer the subject of
these interactions. Instead, the physical person becomes the object affected
by the actions of the interpretant as the subject. Subjectivity and bias within
algorithms further aggravate the disjuncture between simulated reality and
what is actually real. Some examples illustrate the problem.
Ongoing advances in online data collection (Peacock 2014), the expansion
of sources (from government to commercial) and the “unprecedented
deliberate “sharing” of personal information” ensures a growing repository
for each data entity (Grafanaki 2017, Peacock 2014). While the increased
availability and variety of data sources may improve the potential quality of
the data entity, the accuracy of any interpretant remains dependent on the
algorithms used. The data broker industry generates as much as $200 billion
annually by providing known and unknown third parties with access to
available data (Sadowski n.d.). Physical persons receive a limited and
disproportionately low share of the benefits (Tene and Polonetsky 2013).
This process is commonly referred to as “data mining”. However, Jathan
Sadowski notes that the term “mining” implies the data already exists. In
reality, the data and signifiers produced through data mining are not mined
but “manufactured” (Sadowski n.d.).
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As data objects, future determinations will inform the way the physical
person develops. Data brokers begin with raw data that is processed to
create a representamen. Representamen are evaluated and categorized to
produce an interpretant that is allocated into to “relevant” data segments,
aggregates or groups (Grafanaki 2017). The physical person is thus
categorized without input or oversight. The lack of awareness as to when
data is stored, accessed or used makes physical persons easy targets for
“data mining”. The data produced provide additional input into the physical
person’s data entity.
This article does not suggest that there are no benefits to algorithms or
personalization. An estimated 2.5 quintillion bytes of data are created each
day (Marr 2018). This data would be useless without and effective means to
search or sort through content. Algorithms are an essential component of
this process. It is the use of algorithmic processes to substitute and
categorize digital interpretants for physical persons that warrants closer
attention.
Prediction, prescription and polarization
Interpretants provide value by predicting the probable behaviors or
propensities of material persons (Diakopoulos 2015). These predictions use
select data points and rely on algorithms to qualitatively classify a
representamen or predict future outputs through regression analysis, or
classify a representamen based on a particular data point (Brownlee 2017,
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Rendle et al. 2009)). Classification categorizes the object into a particular
group according to the data point (or points) used (such as gender, marital
status and so on). Regression analysis estimates particular aspects or
physical characteristics based on the interpretant (such as age, weight,
income and so on). The interpretant's appearance is, therefore, shaped by
the algorithm's designer (Harper 2017). As we saw in fig. 3, the designer
also selects which data the algorithm will target. However, a preference for
a particular data source (such as government, sensor, and so on) merely
means that a higher proportion of the preferred data is considered than data
from other sources. Regardless of preference, this cannot present a
complete picture of the physical person. In addition, designers must
prioritize some characteristics and qualities over others (Harper 2017). We
have already touched on data selection as the first point of potential bias
within algorithmic models. The second point of potential bias occurs with
the use of subjectively determined values to inform calculations of
probability. We must delve a little deeper into the mechanics of probability
theories to properly appreciate why this subjective value has the potential to
cause bias in algorithmic predictions.
Originally described as “the doctrine of chances” probability theory
provides mathematical formulae to predict the likelihood of certain events
(Bayes 1763). Thomas Bayes made an important contribution to the
evolution of probability theory by showing that one could infer the
probability of a future event by considering the frequency of similar past
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events (Debnath and Basu 2015). Bayes’ theorem can also predict the
occurrence of one event in correlation with another (Sarwar et al. n.d.). This
is known as conditional probability and enables us to predict the likelihood
that “event B” will occur if “event A” happens (Shynk n.d.).
No doubt the reader has seen conditional probability predictions in action on
platforms such as Netflix (see Gomez-Uribe and Hunt 2015) or
Amazon.com. E-commerce sites often rely on probabilistic determinations
and include similar recommender systems. The Known Nearest Neighbor
(“k-NN”) model also streamlines purchasing processes by identifying and
recommending products the purchaser is more likely to want (Sarwar et al.
n.d.). Most recommendation systems work by finding content similar to past
purchases (“content-based filters”) or by aggregating users with similar
tastes and recommending similar items (“Collaborative filtering systems”)
(Condliff et al. 1999). The ability to successfully predict whether readers of
“Book A” will like or buy “Book B” has contributed significantly to the
success of Amazon Books (Shynk n.d.).
Most of these algorithms are informed by a subjective value. Bayes’
Theorem relies on a “Bayesian Prior” that gives numerical expression to the
of a particular event (Dowe et al. 2013). This prior relies on one party’s
estimate yet is key to the algorithm’s success. As a result, the outcomes of
prediction depend on a subjectively determined “prior” (Dowe et al. 2013).
Any bias on the part of the determining party will be imported into the
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algorithm and its results. k-NN models rely on labelled input data to “learn”
how to recognize the appropriate output (Harrison 2018). “Labelling”
requires similarly subjective input. For example, Yi Feng Wen et al has
produced a database that provides a “normative range of facial
measurements” according to ethnicity (Wen et al. 2015). Nonetheless, the
possibility of “misclassification” (or mislabeling) cannot be ruled out and is
further complicated by mixed ethnicity/race subjects (Wen et al. 2015).
Even the placement of “neighborhood” boundaries – that is, where one
group ends, and another begins – will have a significant impact on
subsequent results (Altman 1992). While this effect can be mitigated,
mitigation will again depend on the algorithm’s design – and therefore the
algorithm designer’s choices (Altman 1992).
Subjective values are likely to improve in accuracy with each application.
Nonetheless, we can never have enough data to know everything correctly
and in advance (Polanyi 1886-1964). Algorithms and algorithmic bias have
a key role in determining the “appearance” of the signifiers that substitute
for the material person in digital space. Algorithms rely on the presumption
that what we have done before we will do again. Such presumptions create
important issues in the digital space for two reasons. Most significantly, this
presumption assumes that the data and subsequent interpretant is accurate
yet allows limited (if any) opportunity for review. Unlike real life where we
are free to break with tradition, algorithms also prescribe what we see and
do based on models of what we will probably want. In real-life we can use
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public transport for our commute instead of driving, shop in a different
store, or talk to someone with whom we would not normally interact.
However, in the digital space, outlying behaviors, characteristics or choices
are pre-emptively dismissed by algorithmic models as unlikely and,
therefore, rendered invisible to us. Thus, in digital space, we are more likely
to act just as probability predicted. In short, interpretants are born out of
probabilistic determinations and, therefore, subject to bias and inaccuracy,
yet these interpretants inform choices made on the physical person’s behalf
in the digital space. These digital choices have real world outcomes for the
physical person in the physical world.
A new perspective requires a new ethical approach.
Once we recognize how the physical person becomes excluded from
consultation and subsequent threats to personal autonomy, we can demand
new ethics to address this reality. When algorithms turn our search results,
clicks and interactions with technology “into a conversable code,” this code
is stored for later “interrogation and analysis” (Harper 2017). Raw data is
processed by algorithmic methods and converted into indicators of future
behavior or the comparative “worth” of material persons. At the same time,
algorithms lack transparency (Pasquale 2015, Ziewitz 2016), yet may affect
our ability to seek education advantages, work opportunities, receive
welfare, insurance or credit, and so on (Gillespie 2017, Grafanaki 2017).
ZipRecruiter is a straightforward example of an online service that uses
algorithms to streamline otherwise complex processes. ZipRecruiter
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employs “matching technology” to request suitable applicants (registered
with ZipRecruiter and other “job boards”) submit applications for
appropriate job opportunities. Once applications are received, ZipRecruiter
“analyses each one and spotlights the top candidates.”5 Only those
applications deemed suitable are forwarded to the employer. Thus, material
persons can be excluded from contention without knowing they have been
assessed while others are prioritized.
To manage vast quantities of data, selection and deselection processes must
short-list the available data into relevant and manageable subsets. Some
data sets are excluded by design, due to computational errors or commercial
necessity but the criteria are unknowable (Harper 2017). Algorithms
consider some data more probative than others and priorities that data set.
However, prioritization occurs within an already curated subset of data and
the potential for cumulative bias grows with each inclusion or exclusion.
Algorithms do more than include or exclude material persons based on their
interpretants. Behavioral marketing allows advertisers to target campaigns
specifically to certain material persons based on their individual
interpretants (Amer and Noujaim 2019). These campaigns are a lucrative
financial resource for internet-based companies (Grafanaki 2017). The
threat lies not in predictions or advertisements that “miss the mark” but in
those close enough to divert the attention of physical person elsewhere.
Targeting may reinforce a belief or predisposition of the physical person
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without their knowledge or gradually alter their perception. These acts
undermine individual autonomy by encouraging the person down a
particular intellectual or emotional path.
Data without context is also likely to conflate the temporal with the static. A
period of depression might see us looking for support on noticeboards we
would not usually visit, but as this behavior increases, we see more of this
content – even though our feelings may be transitory. The effect of these
clicks becomes more fixed with each click or scroll that affirms the
prediction that this is the content we want. These clicks become a
permanent part of the material person’s data entity, regardless of the limited
length of their relevance. In addition to exclusion, prioritization and
targeting, algorithms may also increase discrimination based on past (and
subsequently irrelevant) behaviors.
In his 2011 work, “The Filer Bubble: What the Internet is hiding from you”,
Eli Pariser explores the relationship between the categorization of the
material person and the prescription of digital content (Pariser 2011).
Pariser notes three key aspects of the filter bubble: isolation, invisibility,
and our lack of choice as to whether we become part of that bubble.
Pariser’s hypothesis (Pariser 2011), when combined with the digital
signifier introduced in this article, provides an important illustration of the
operation and effect of the interpretant. “A” (the physical person) is
available for consideration based on their data entity – “data entity A.”
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From data entity A, algorithms build “Interpretant A” which is then
categorized and allocated into a group, “Group 1.” Probability theory
predicts the “most relevant” content for Interpretant A and Group 1 to
produce an estimate of content desired most useful or relevant to the
material person. For instance:
1. Interpretant A will probably be interested in content similar to what
they have found interesting before; and,
2. Content sought out by other Group 1 signifiers is additionally likely
to appeal to those in Group 1 (and, by corollary, Interpretant A) in
future.
If we imagine the digital space and its infinite webs of data and information
containing a multitude of theories, opinions and concepts, then we can also
imagine that there is a sphere of information “most commonly known,”
“most commonly sought” or “most often relevant” to the material
person. This sphere of “most commonly known” exists within a larger
encompassing sphere (or concentric spheres) which contains lesser known,
less sought after, or perhaps even highly controversial and prohibited
subject matter. Regardless of the location of content within the inner or
outer spheres, within them are topics or beliefs and poles of opinion (pro- or
anti-) within them.
A similar hierarchy exists within each topic. The more popular posts, clicks,
or opinions will be positioned in the central ring. Less popular content is
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moved to the outer extremes of the group. Let’s assume that Interpretant A
and Group 1 are particularly interested in “Belief X”. Interpretant A (within
Group 1) will exist somewhere along the continuum between pro- and anti-
Belief X. If Interpretant A and Group 1 are in favor of Belief X, they will
receive an increasing proportion of pro Belief X (“Pro-X”) subject matter.
Pariser also notes that human beings tend to choose the “least
objectionable” option (Pariser, 2010). If saturated with disagreeable content,
we engage with the least objectionable version. The quantity of clicks might
be the same as that of someone who genuinely agrees with the content.
However, probability theory cannot distinguish between high- and low-
quality engagement. The quantity of clicks will not represent the true nature
of the material person. Probability will infer that the group prefers Pro-X
content. Consequently, Interpretant A and Group 1 will move further along
the continuum towards Pro-X and see less and less anti Belief X (“Anti-
X”). A culture of likes, upvotes, shares and so on will create a positive
feedback loop that rewards behaviors that conform to the Group 1’s norms.
As a corollary, the group’s shared view is further entrenched and are
exposed to decreasing proportions of Anti-X content.
Our tendency to engage with the least objectionable can unknowingly trap
us in a pattern we would otherwise seek to break, or which slowly diverts us
to content we are not actively seeking (Sulkowski and Picciolini 2018). Our
exposure to digital content influences the appearance of interpretants and
25

the attitudes of material persons in physical space. This appearance also
affects the way material persons are seen by other material persons within
that same space.
Algorithms will look for parallels between our interpretants and link parties
that might not meet otherwise (Mantelero 2016). By grouping like with like,
the process closes individuals off to opposing viewpoints. Popular opinions
become easily entrenched while minority views go unheard (Nikolov et al.
2019, Harper 2017). These groups or “aggregates” lack the “social and
cultural identities of real communities” (Alaimo and Kallinikos 2017).
Outliers and outlying behaviors are commonly ignored by algorithmic
models (Tene and Polonetsky 2013). Minority opinions are less visible
because algorithms assume that group behaviors are static and unlikely to
change (Tene and Polonetsky 2013). The material person’s world view is,
therefore, shaped by the application of an algorithm to a data set that may or
may not accurately represent them. The result is not only an increase in
external influence, but in external control (Benkler 2001). The material
person becomes an object of personalized information rather than an
autonomous subject which selects the content they receive (Ibrahim 2017).
Outcomes, opportunities and content (such as news, social media posts,
viewing recommendations) are dictated to the material person through the
ease and convenience of algorithmic models and signification. Physical
persons become part of a self-referential loop, prone to polarization and
deprived of conflicting opinions. The interpretant holds substantial
26

influence over the constitution of a physical person’s identity. It is precisely
this aspect which a new data and information ethics must address.
Figure 3 shows the link between signification, its outcomes in both digital
and physical space. These outcomes influence the evolution and
development of individual identity. Signification influences who we
become and our perception by others. Laws built on the legal person as
something singular and material cannot address this translation. Law that
focusses on consent as a means through which a physical person asserts
their autonomy ignores signification and the challenges of digital space.. In
the next section, this article explains why the consent is irrelevant to the
actions of an interpretant within and beyond the digital space.
What is consent
The previous section showed that data about the object, algorithms, the
representamen and the interpretant all have significant influence over
outcomes in the physical space. The examples showed that these outcomes
have concrete consequences that may not always benefit the material
person. Next we must consider whether this occurs with the consent of the
material person.
Consent is difficult to define. We know what is not consent. Consent plays
an important role in individual autonomy. Consent mediates obligations
27

between parties. Consent validates and justifies acts that fall under scrutiny
or substantiate claims for enforcement against others. Consent creates
relationships between material persons or extinguishes them, creates
binding obligations to others, and forces the performance of obligations
between parties. An absence of consent can ground legal actions under tort
or criminal law (Brosnan and Flynn 2017). Essentially, consent allows the
physical person to delimit what others can do to, for and against them.
An examination of consent, the interpretant and the digital space
Consent is an ideal that developed from its early origins around the 12th
century (Barnhart and Steinmetz 1988). A material person’s right to consent
or withhold consent is universally recognized.6 Legal precedent requires that
valid consent is given freely7 and occurs once the material person has
adequate notice, knowledge and choice as to how (and whether) they will be
affected. However, only the signifier has the power to act within the digital
space (Andrus 2017). Material consent is meaningless. For valid material
consent each signifier would need adequate notice, knowledge and choice.
Even if this were possible, material persons cannot consent to signification
and its unforeseen outcomes. Let’s return to our earlier example of
Interpretant A but add more physical world background to create a concrete
example of how consent fails within the digital space.
If we are talking about Interpretant A, then we can assume there is an
original Object A or Physical Person A (“PP-A”) according to whom
28

Interpretant A is constructed. For arguments’ sake, we will say that PP-A
comes from a long line of supporters of political party X. They are Pro-X in
their belief, but following a news report on radio, they are interested to
know more about some of the claims made by their opposition
(“Opposition”). PP-A returns home and googles some Opposition articles
to better understand their arguments. PP-A is not convinced and remains a
staunch Pro-X voter but begins to receive more posts on this particular
Opposition issue through social media, news media and so on.
PP-A is in a vulnerable position. Let’s assume in this situation that there is
no middle ground and that PP-A can either be Pro-X or Anti-X. This
example could then proceed in two different ways:
Firstly, as a member of Group 1, which is also considered Pro-X, PP-A must
actively seek information on this particular issue to fully resolve their
inquiry. Each search along these lines pushes them further into the outer
margins of Group 1 and further along the Belief X continuum from Pro-X
towards the Anti-X end within that group.
PP-A’s posts within that group become less visible to other Pro-X signifiers,
but increasingly visible to Anti-X. PP-A then receives more and more Anti-
X material, occasionally engaging with the more moderate and least
objectionable form of Anti-X content.
29

Eventually, PP-A will exist in an overlap between Anti-X and Pro-X, but
within those groups will receive less acknowledgement from Pro-X group
members but increasing support from Anti-X members. The example, while
simplistic, is familiar to any of us who have googled an opposing viewpoint
and gradually found ourselves more amenable to it.
Alternatively, or secondly, PP-A may be distracted by other concerns or
abandon their inquiry. As a member for Group 1 they continue to receive
more Pro-X content. Occasionally, those with more extreme Pro-X beliefs
than those of PP-A will share content that engages PP-A. As with our
previous example, this engagement – this time with Pro-X sentiment – will
push PP-A along the belief X continuum further towards the Pro-X end. As
this shift occurs, the Opposition view that initially drew MP-A’s attention,
recede further from MP-A’s purview.
At its most basic level, the interpretant has become the actor on which
digital decisions are made. The interpretant does not review the Terms and
Conditions (“T&Cs”), nor does it click “I agree”. The physical person gives
consent in the physical space. Consent presumes that the physical person’s
consent is relevant to subsequent acts within the digital space. However, the
physical person’s consent remains irrelevant unless the interpretant has
delegated agency from the material person. Alternatively, if the physical
person’s consent were to be so widely construed as to include the delegation
of agency to their interpretants, one cannot reasonably claim that this
30

consent is valid on the grounds that the physical person cannot be expected
to understand or anticipate the variety of outcomes and influences such
agency would produce.
Consent as a concession of power
The question then becomes whether the physical person has adequate
notice, knowledge or choice to authorize the signifier to act as an agent on
their behalf or whether the signifier is capable of giving material consent.
In either of these instances, it seems unlikely the physical person intended
for consent to extend so far as to have them completely replaced by an
unknown entity. To imply that signification is justified under consent would
be to concede all of the physical person’s power and authority to an
unknown actor for any and all circumstances.
Whether it is between the physical person and the interpretant, or between
physical persons interacting through digital space, consent remains a
concession of power to another party. For example, consent allows
consumer exchanges of property. Under ideal circumstances a seller accepts
legal entry into a relationship that allows the buyer to take their property,
and in exchange, the buyer accepts entry into a legal relationship that allows
the seller to keep money, data or property that otherwise belongs to them.
Both parties concede their right to claim back their property without legal
31

ramification. Each party is free to deal with the exchanged property as they
see fit – or as agreed in the T&Cs.
A crucial part of valid material consent relies on the parties’ opportunities to
review and understand the T&Cs. Given that the signifier has no
opportunity to review the T&Cs, we shall proceed on the basis that consent
presumes that physical persons have consented to the use of their data in
various means regardless of signification. Nonetheless, the stated terms
should be transparent and readily understood.8 In addition, standard form
contracts (or “adhesion contracts”) do not allow negotiation between the
parties (Leff 1970, David A Hoffman 2018). In adhesion contracts, T&Cs
exist on a “take-it-or-leave-it” basis (Obar and Oeldorf-Hirsch). The use of
adhesion contracts by monopoly providers (such as Google and Facebook)
reduces the physical person’s options to compliance or missing out (Obar
and Oeldorf-Hirsch 2018). In many instances the physical person’s consent
to the access of personal data and subsequent data use in exchange for a free
service or discount.
Free social media platforms and digital services are not “free” (Hoofnagle
and Whittington 2014; Hull 2015). Physical persons pay through non-
pecuniary performance at a data and privacy cost. The initial draft of the
Proposal for a Directive of the European Parliament and of the Council on
certain aspects concerning contracts for the supply of digital content (“EU
DCD proposal”) attempted to address the exchange of free goods and
32

services for data. The proposal recognized that the distinction between free
and paid services discriminated between traditional and new business
models: money exchange versus data exchange. The disparity effectively
incentivized the exchange of digital content and services for data (EU DCD
Proposal, Rec (13)).
The Directive as adopted earlier this year includes contracts where the
“trader supplies or undertakes to supply” digital content or services
provided the consumer “provides or undertakes to provide personal data to
the trader” (Directive on contracts of supply of digital content and digital
services, Art 3, 1). Unfortunately, these exclusions are broadly defined.
Exchange contracts which process data for the exclusive purposes of
“improving security, compatibility or interoperability” are not subject to the
Directive (Directive on contracts of supply of digital content and digital
services, Art. 3, 5(f)). Perhaps the reader recognizes these terms from
privacy notices they have previously skimmed? They are not uncommon
terms. Nonetheless, the move towards regulating free services to the
consumer is encouraging even if the outcomes are uncertain. It is clear,
however, that material persons are unaware of the true cost of these
transactions (Grafanaki 2017). This article has already discussed the
negative impact that signification has on self-determination. The physical
person also suffers a privacy loss.
33

Concession and privacy are inextricably linked (Ortiz 1989). For Ortiz,
privacy creates a boundary between the values of the physical person and
their community. Ideally, the physical person only agrees to share their data
if willing to concede to a loss in privacy over that data. The result is a kind
of “privacy calculus” where material persons weigh losses in privacy
against the benefits of opting-in (Gómez-Barroso et al. 2018).
Privacy is also relative in that it exists only in reference to the person from
whom we wish to hide (Hand 2018). The constant connectivity of the digital
space provides a feeling of connection that is also isolating (Debord 1931-
1970). Isolation gives a false impression of privacy. While physical persons
interact via a network of screens they exist as part of a circuit. They are
limited by and to that network by convenience. The personal privacy gained
by our concessions in digital privacy occurs without adequate knowledge,
notice and choice.
For many, of the most appealing aspects of digital self-expression is the
feeling of anonymity. Selective expression in digital space enables the
physical person to conceal some aspects of themselves from some within
their social network. However, once these expressions have entered digital
space, the physical person cannot prevent their access by other unforeseen
parties. In order to give valid consent, physical person must understand the
concessions they make. Thus, disclosure remains crucial to consent and is a
substantial focus for legislation: If knowledge is power, disclosure offers the
34

physical person the knowledge to properly consent. The question remains
whether legal disclosures are effective in the digital realm.
The quality of these digital disclosures directly affects the quality of notice
the individual receives. However, the digital space poses a two-fold threat to
individual notice. First, studies estimate that less than 10% of users who
access End User License Agreements (“EULAs”) spend more than two
minutes reviewing their contents (Bakos et al. 2014). Given the length of
these disclosures, it seems unlikely that a 2-minute perusal has provided
sufficient notice for the physical person to acquire the requisite knowledge
for valid consent. In fact, studies suggest that physical persons are not fully
informed, do not want to be informed, and are incapable of understanding
and processing the details of these agreements (Ben-shahar and Schneider
2011, Wilkinson-Ryan 2014).
Secondly, the ever-increasing requirements for transparency and clarity
produce longer disclosure documents filled with more and more detail (Ben-
Shahar and Schneider 2011). The result is “disclosure overload” where
standard form disclosures have become “so long and elaborate that
disclosers have problems … assembling the information … [and
Individuals] … cannot understand, assimilate [nor] analyze the avalanche
of information” (Ben-Shahar and Schneider 2011). In addition, en masse
disclosures create an “accumulation problem” where individuals are
overwhelmed with disclosure documents and those who wish to read the
35

documents cannot do so proficiently (Ben-Shahar and Schneider 2011). We
cannot continue to rely on notice, when notice has become so impractical as
to be virtually impossible.
Our third requirement for valid consent is choice. This is also problematic in
the digital space given the consenting party may be unaware that consent
has taken place (Obar and Oeldorf-Hirsch 2018). The option to click “I
agree” channels individual attention elsewhere to keep the individual “in a
buying mood” and carries little gravity (Obar and Oeldorf-Hirsch 2018).
The ease of “I agree” also discourages and possibly thwarts attempts at
critical inquiry (Obar and Oeldorf-Hirsch 2018). In addition, clickwraps and
browse wraps such as “I agree” also exploit our bias towards agreement by
triggering a system of heuristics that bypass deeper reflection in favor of
impulsive and rapid decision-making (Leonhard 2017). Free choice is also
undermined by the significant market power held by companies such as
Google and Facebook. In its final report, published June 2019, the
Australian Competition and Consumer Commission notes the “considerable
imbalance in bargaining power between digital platforms and individuals”
(Australian Competition and Consumer Commission 2019). For many, the
cost of “opting-out” of digital consent will be too high. Regardless,
disclosure and transparency cannot and do not solve the problems of
consent in the digital space.
36

The European Union’s General Data Protection Regulation (“GDPR”) is
one of the most significant and recent developments in the law of consent as
it applies to data (Englezos 2019). The GDPR crosses international borders
and, therefore, provides a new de facto global standard for data regulation
(Englezos 2019). However, the GDPR demonstrates the same continued
reliance on consent and disclosure as its predecessors and contemporaries.
As we have seen, the digital space and physical space could not be more
different. The former is immaterial but interminable, while the latter is
material and ephemeral. The new inclusions and new rights contained
within the GDPR cannot successfully address the unique problems of
consent in and beyond the digital space because its focus remains on making
the consent of the physical world fit the digital space. As outlined above, no
matter what our approach – be it through the consent of the physical person
or the interpretant – neither have adequate notice, knowledge or choice to
give valid consent.
Conclusion
This article provides a new lens through which we can understand the
digital space and seeks to add to academic discussion by offering a new
model of digital actors. In digital space we have interpretants instead of
physical persons. Acts based on interpretants influence the development of
the physical person just as the actions of the physical person continue to
shape the interpretant in return. As academics continue to “bang their
37

heads” against the proverbial brick wall of consent and privacy law in their
attempts to address the ethical challenges of digital space, commercial
interests will continue to drive the production of digital content. Social
media platforms and other digital content providers will continue to shape
and inform our individual realities. In reality, we have limited control over
our data (if any) and limited control over who has access.
In-person, we have input or oversight of our appearance and some control
over how we appear to others. We can choose to look composed and
professional in an interview, relaxed and affable with friends, and be
childish with our children. In the digital space, we have no such control
over how we appear, and it is much more difficult to segregate these
different personas (Belk 2013). The physical space and digital space have
become so intertwined that there is no clear distinction between the two.
Consequently, occurrences in digital space shape the way material persons
perceive each other in the physical world as well as in digital space. Within
a space filled with collective memories, the digital interpretant is
continuously informed and reformed according to occurrences both in- and
outside of the digital space. The object, the representamen and the
interpretant become increasingly difficult to separate while none of them
have adequate knowledge, notice or choice to give valid consent.
For now, the first step is to recognize that signification renders consent unfit
digital space. In future, legal scholars may need to consider signification
38

as locus operandi for the law of consent or other laws which govern digital
interaction, while ethicists consider the much larger threat to individual
autonomy. The most successful approach may be one that recognizes the
novelty and challenges of the digital space and focuses on signification.
Precisely what this is remains a fascinating subject for further consideration.
Oversight of the physical person’s signification would provide the physical
person with an opportunity to review the accuracy of their substitute. This
approach is a significant departure from the “right to know” when
automated decisions are made about you (GDPR Art 22). Oversight of
signification implements a stage of review before the decision is made.
This can only work if there are limits on the creation of unique signifiers –
otherwise the process of oversight would be as burdensome as current
models of material world disclosure. Further research in this area is needed.
At the very least, it is time to recognize the failure of material consent as a
solution to the problems of the digital space.
Declaration
The author has no conflicts of interest to declare.
1
Signified and signifier are the commonly used English translations of signifié and
signifiant from the first published edition of Cours de linguistique générale
2
adapted from Chandler, 836.
3
I have specifically adopted the term “personal data” in this article in keeping with the
European Union’s General Data Protection Regulation, Art 4 (“GDPR”).
4
Although GDPR OJ L 119/1 Art, 17 and other similar legislation allow the natural person
to request the erasure of their data, the data can never be entirely erased from the digital
space.
39

5
See, for example “ZipRecruiter” video How ZipRecruiter works: The smartest way to
hire, for any size company, in every industry which states in relation to employers who post
job advertisements on Ziprecruiter.com “Once you post, our matching technology actively
scam millions of resumes and profiles on ZipRecruiter and 100+ job boards and invites
qualified applicants to apply. As applicants come into your dashboard, we analyse each one
and spotlight the top candidates to make sure you never miss a great match.” from 0:21.
6
Whether this right is respected and observed is a matter for separate discussion.
7
See, for example, Commercial Bank of Australia v Amadio (1983) 151 CLR 447, Louth v
Diprose (1992) 155 CLR 621 and Blomeley v Ryan (1956) 99 CLR 362 in contract law and
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 in medical consent.

8
See for example Australian legislation such as the Competition and Consumer Law 2010
(Cth), Sch 2 (Australian Consumer Law), s 24(2).
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Forget Consent? Answering The Challenges of Digital Spaces

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GRIFFITH UNIVERSITY

GRIFFITH LAW SCHOOL

Social Science Research Network Legal Scholarship

Griffith Law School Research Paper No. 21-10

Forget Consent? Answering the Challenges of

Electronic copy available at: https://ssrn.com/abstract=3791056

Our world comprises of both material and immaterial

physical space, we have context, nuances and a history based on temporal

Electronic copy available at: https://ssrn.com/abstract=3791056

the material person by something immaterial.

Online, individuals are represented according to the contents of their data

substitute that the individual interacts online. Essentially, this substitute

of interaction. Once the individual gives their initial consent, interactions

(re-)introduction to semiotic theory and the process of signification which

enables humankind to bridge the real-world-digital divide. The section, “A

challenge to autonomy” considers the quality of consent as provided by

by “What is consent?” which considers consent as a concession of power

and examines the challenges created by data proliferation. If consent exists

persons and service providers in the digital space undermines consent so

approach. It positions signification as a new locus operandi for legal

reforms and requires a reframing of digital information ethics.

Electronic copy available at: https://ssrn.com/abstract=3791056

presented by digital space, the translation of the material person into a

must undergo some form of signification to exist in digital space. According

to Daniel Chandler, a sign is something can be interpreted as “signifying”

theory, one must first note a few things before we proceed.

Linguist Ferdinand de Saussure first used the terms “signified” and

“signifier” to represent a concept and its related sound pattern in his

“Course in General Linguistics” (Saussure, 1916).1 According to Saussure,

the signifier and signified combined or interacted to produce a sign

denote that same object (Chandler 516). As the Saussurean sign is

commonly misapplied in contemporary discourse, it is important to spend

As a linguist, Saussure states that language owes its versatility to the

arbitrariness of signs: “there is no internal connexion … between the idea

is the arbitrariness of the letters s, ö, and r, as well as their order and

Electronic copy available at: https://ssrn.com/abstract=3791056

into existence as part of language (Saussure, 2013 100-101). Saussure,

therefore, used a dyadic model of signifier and signified to explain how a

sign could be used linguistically to represent the idea of a particular object.

Charles Sanders Peirce, a philosopher and logician, focused on the effect of

Peircean model of object, representamen (similar to Saussure’s signifier)

and interpretant provided a mechanism to show the impact of interpretation

when considering a sign. Convention and context inform interpretation and

the impression generated by the sign.

Fig 1. Peirce’s Model as a semiotic triangle2

referred to. The representamen is “something which stands to somebody

Electronic copy available at: https://ssrn.com/abstract=3791056

the equivalent of Saussure’s “signifier” or word (Chandler 856). The

“create[d] in the mind of that person” (Peirce 1931-58 2.228).

think of it as a phonetic symbol that assists correct pronunciation. Other’s

will know it specifically as the “mid central vowel” in the International

Phonetic Alphabet, while others may simply interpret it as an upside down

“e” and consider it to be an error. In each of these instances, a different

interpretant is presented, first a sound, second a phonetic device, and thirdly

This representamen produces different interpretants and are therefore

understood as signifying different objects. The object, depending on

context may form part of a dictionary definition, a phonetic device, or

printed on a piece of paper that we are viewing upside-down. Peirce’s

interpretant is shaped by context, community praxis, and convention and

is “arises from its interpretation” (Chandler 908). Applying Peirce’s model

to the signification of the physical person in digital space provides us with a

new perspective of the power relations within digital space. This

failed to adequately address the challenges of digital space, but also