EU GDPR Opt-In vs US Opt-Out Data Privacy Consent Systems

---

Summary

• As data‑privacy breaches grow worldwide, the EU and the United States have adopted sharply different regulatory models, with the GDPR relying on explicit opt‑in consent while U.S. laws generally default to opt‑out systems that vary widely by state.
• These contrasting consent regimes give individuals different levels of control over their personal information and create uncertainty for consumers, businesses, and regulators operating across jurisdictions.
• This article compares the EU’s comprehensive GDPR framework with the United States’ fragmented approach, analyzing how each system defines valid consent, the rights each grants, and the strengths and weaknesses of opt‑in versus opt‑out models.

Bloomberg Creative/Bloomberg Creative Photos via Getty Images

Jump to:

• I. Introduction
• II. Various Approaches to Consent
• III. Determining What Constitutes Consent Under the EU’s GDPR and U.S. Law
• IV. Conclusion

---

---

I. Introduction

Data privacy relates to how companies and other third parties utilize personal information. 1 In today’s digitally interconnected world, data privacy breaches are becoming more common. 2 As of 2025, the global cost of cyber threats is expected to rise up to $10.5 trillion. 3 In response to the escalating data privacy issues, lawmaking bodies passed new legislation to give consumers more control over their personal information. 4 Both the European Union and the United States are among those who have passed new data privacy laws. 5 But the European Union’s and the United States’ enacted data privacy regimes differ significantly from one another. 6 One difference includes the way in which they handle consent: the EU’s General Data Protection Regulation (GDPR) largely operates on an opt-in basis, while the United States generally uses an opt-out model. 7

The European Union adopted the GDPR in 2016, and the law came into effect in 2018. 8 The GDPR protects and governs data privacy across the European Union. 9 In contrast to this unified system, the United States does not have a similar federal data privacy agreement. 10 U.S. data privacy laws often operate differently state by state. 11 Furthermore, not all states have data privacy laws in place. 12 Therefore, data privacy laws are much less comprehensive in the United States than in the European Union. 13

According to Article 6 of the GDPR, consent is one of the six lawful bases for the processing of personal data. 14 An individual must take a clear, affirmative action to consent to giving his or her data to third parties. 15 In other words, to have legal consent under the GDPR, a data subject must explicitly opt-in to allowing companies to process his or her personal data. 16 In contrast, the majority of privacy laws across the United States operate through an opt-out system, in which a consumer’s consent is presumed unless he or she takes the required steps to withdraw consent. 17

Data privacy laws help individuals protect how their personal information is used and collected. 18 The opt-in and opt-out regimes each place a different emphasis on consumer protection. 19 Therefore, the method of consent used gives individuals varying levels of control over their personal data. 20 As the world becomes increasingly connected globally, data privacy’s import increases. 21 The fact that what constitutes consent in some places may not legally count as consent in others affects both consumer expectations and company compliance with the different laws. 22

Thus, these differences in data privacy laws leave questions open for consumers as to whether they actually gave consent to use their data and for businesses as to how to legally comply with consent, in turn creating similar ambiguity for those enforcing the laws. 23 This Article will first explore the varying approaches to consent in the European Union and the United States by comparing the consent requirements in the EU’s GDPR to the non-comprehensive U.S. data privacy laws, focusing on the laws as they currently stand, the standards for valid consent under each approach, and the rights afforded to individuals under each model. Next, this Article will focus on the legal effects and issues of the EU’s opt-in approach compared to the U.S. approach, which generally follows an opt-out model, specifically discussing the strengths and weaknesses of each type of consent, whether consent is truly given under each system, and how the regimes balance consent and data protection.

---

---

---

---

II. Various Approaches to Consent

A. The European Union’s GDPR

The EU’s GDPR allows for lawful data processing when (1) the data subject consents, (2) it is necessary to perform a contract, (3) it is needed to comply with a legal obligation, (4) it is vital to save someone’s life, (5) it is required to perform an act in the public interest or carry out an official task, or (6) it is essential to serve a legitimate interest. 24 This analysis focuses on when consent is used as the legal basis for data processing. Under the GDPR, consent must be (1) “freely given,” (2) “specific,” (3) “informed,” and (4) “unambiguous.” 25 Ultimately, consent demonstrates “the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.” 26

The first requirement, “freely given,” means the data subject has “real choice and control” over his or her decision to consent. 27 When deciding if the consumer exercised true choice, any imbalance of power between the data subject and the controller will be considered. 28 The data subject must not feel obligated to consent or feel as though there will be negative repercussions if he or she refuses to do so. 29 Furthermore, consent cannot be an item in a non-negotiable list of terms and conditions or tied to other provisions in a contract. 30 In other words, the data subject should be able to choose which processing purposes he or she wishes to accept, rather than only accept the whole package deal. 31 The data subject also must be able to refuse or take away consent without facing any negative consequences. 32 Thus, freely given means that the individual is afforded the opportunity to voluntarily accept or reject the terms of consent. 33 When assessing the requirements of consent, the European Commission stated that consent is not freely given if a company asks for personal data when conducting an unrelated contract because the individual may believe the contract terms are tied to providing personal information. 34

The second element under the GDPR—that consent must be “specific”—means that the data subject is required to consent to a particular processing purpose. 35 Thus, if there are multiple purposes for which the data processor seeks to obtain consent, there must be “a separate opt-in for each purpose.” 36 Also, information about consent to data processing must be separate from all other information. 37 A recent case against Google showed that consent was not specific when the consumer agreed to multiple processing services together rather than for each separate purpose. 38

Third, the data subject must be “informed,” meaning the individual should have enough information to know what he or she is agreeing to. 39 The controller must offer sufficient information regarding the consent in a clearly understandable way. 40 Essentially, the language used must be “clear and plain,” so that the data subject can make an informed decision. 41 This information includes the controller’s identity, the purpose, the data type, the right to withdraw consent, the use of data for automated decisions, and the potential risks of data transfers. 42 In the aforementioned case against Google, the consumer was unable to understand the multitude of information involved because Google conflated the information processed. 43 The court held that this method was not sufficient to obtain informed consent. 44

Lastly, consent under the GDPR must be “unambiguous,” meaning it cannot be implied. 45 This opt-in must come through a “statement or a clear affirmative action” that is deliberately executed to indicate consent. 46 “Silence, pre-ticked boxes, pre-completed forms or inactivity” is not sufficient to indicate consent. 47 Therefore, in order to have legal consent under the GDPR, it is imperative that the consumer actively gives permission before an entity collects and uses his or her personal information. 48 In the case Planet49, the European Court of Justice held that a pre-ticked checkbox, meaning consumers had to unclick the box if they did not want to consent to processing their personal data, was not a proper way to consent. 49 The court focused on the fact that a pre-checked box is not enough to be unambiguous because active conduct is required to make consent valid. 50

Another notable feature of the GDPR is that data subjects are afforded a wide array of rights. 51 For example, the data subject must have “the right to withdraw his or her consent at any time.” 52 Taking consent away should be as easy as giving it. 53 Additionally, data subjects have the right to erasure of their data, also known as the right to be forgotten. 54 Consumers also have the right to know of any high-risk personal data breaches. 55 Data subjects have even more control over the processing of sensitive subjects, such as health information and religious beliefs. 56 While a “statement or clear affirmative action” is required for all consent, explicit consent is needed in situations where extra protections are deemed appropriate. 57 Explicit consent compels the heightened requirement of “an express statement of consent,” such as through a written statement, an oral conversation, or a two-stage verification process. 58 The GDPR also affords extra protections for processing the data of certain groups of individuals, including children. 59

B. The United States’ Data Privacy Laws

While the United States recognizes the right to privacy through a developed history of case law, no such right is expressly stated in the U.S. Constitution. 60 There are a few federal laws regulating the data privacy sector, but they are all limited to certain fields. 61 For example, the Health Insurance Portability and Accountability Act protects medical data. 62 There is also the Children’s Online Privacy Protection Act, which regulates the online data of children under the age of thirteen years old. 63 Moreover, the United States does not have a federal law requiring opt-in consent. 64 Consequently, even though federal agencies try to regulate personal data, the lack of authority from federal law does not allow them to adequately do so. 65 Because U.S. law does not currently authorize one federal agency to have total control over data privacy, multiple agencies are involved in this sector. 66 The Federal Trade Commission (FTC) is the U.S. federal agency with the most power over data privacy. 67 While the FTC can issue regulations, its data privacy guidelines are nonbinding, meaning the agency is not sufficiently empowered to regulate data privacy. 68

Without any comprehensive federal data privacy laws, it is up to each state to create its own data protection laws. 69 The first three states to implement data privacy laws, California, Virginia, and Colorado, all enacted laws that operate on an opt-out basis. 70 In 2018, California was the first state to implement statewide data-privacy legislation. 71 The California Consumer Privacy Act affords individuals the right to ask that companies share what information they collected and for what purpose. 72 It also gives consumers the right to request that their data be deleted. 73 California later expanded their legislation with the California Privacy Rights Act. 74 While California’s data privacy laws increased consumers’ control over their personal information, likely making them the closest of the state laws to the GDPR, their consent requirements still differ from the GDPR in that they operate on an opt-out basis. 75 Opt-out consent means that consent is presumed unless the consumer takes action to tell the data processor that he or she does not consent. 76 In other words, a consumer consents when they start using a service, and consent will not stop unless he or she tells the company they no longer agree to data collection and use. 77

Recently, there has been an increase in the number of states implementing data privacy laws. 78 As of early 2025, there were twenty states with data privacy regimes, and more with pending legislation. 79 Some rights included in the state data privacy legislation are the right to delete personal data, the right to access personal data, and the right to know what information is collected and shared. 80 Typically, these state laws operate on an opt-out basis, 81 though some states do provide for opt-in consent for certain sensitive information to increase protections for that data. 82 Some examples of sensitive data include health information and Social Security numbers. 83 All of this legislation demonstrates that the current trend in the United States is toward increased data privacy protections. 84

III. Determining What Constitutes Consent Under the EU’s GDPR and U.S. Law

Due to the differing requirements under each data privacy regime, valid consent under the laws of one jurisdiction may not count as consent under the laws of another. 85 Many businesses operate on a global level; therefore, it is important for them to understand how to comply with requirements under both the opt-in and opt-out standards. 86 Moreover, even within the United States, businesses must ensure that their consent models comply with each state’s individual requirements. 87 As consumers and businesses work within the different consent regimes, various viewpoints have emerged regarding the optimal requirements for consent. 88

One strength of the GDPR’s comprehensive data privacy regulations is that it greatly protects consumers’ control over their personal data. 89 Nevertheless, the GDPR’s requirements may create challenges in obtaining active consent from users. 90 Furthermore, the GDPR’s consent requirements are complex, which may make it difficult to ensure compliance with its regulations. 91 While the EU’s GDPR strongly protects consumers, its opt-in method is not as beneficial to businesses. 92

Although data privacy laws vary among the states, the typical structure of U.S. laws allows for data collection unless the consumer actively takes away his or her consent. 93 This general opt-out model for data privacy in the United States is beneficial to businesses. 94 Consequently, it affords fewer protections for consumers’ privacy rights. 95 It also places a higher burden on individuals to protect their own personal data. 96 This responsibility often creates “consent fatigue,” causing many consumers not to review any terms of consent agreements. 97 Oftentimes, consumers do not even know they agreed to anything, or if they do, they do not understand what they agreed to. 98 Many times, they are unaware of what data was collected and used. 99 Once the data has been collected, it is also hard to remove it from the server. 100 Moreover, U.S. federal laws are only applicable to certain industries. 101 Because state laws vary, third parties must ensure they comply with differing requirements, which can lead to confusion. 102 Consumers may similarly be misled about how their data is protected due to this inconsistency. 103

Differences between the two consent models lead to questions such as whether consent is truly given under each method. 104 Under the GDPR’s opt-in model of consent, consumers must actively choose to allow third parties to use their data for each specific purpose. 105 In contrast, under the opt-out model typically used in U.S. data privacy laws, consent is valid until the consumer withdraws it. 106 On the one hand, some argue that the opt-out model does not truly count as consent because the user often does not know what they consented to. 107 On the other hand, some say there is no guarantee that individuals read the information presented to them, so they may also not know what they consented to under the opt-in system. 108

The differences between opt-in and opt-out consent regimes also implicate the proper balance between allowing data collection and protecting consumer data. 109 With opt-in consent, consumers must actively agree to data collection and use. 110 In contrast, consumers are not required to expressly agree to anything with opt-out consent. 111 Thus, opt-in methods of consent provide greater consumer protection than opt-out models of consent. 112 Even so, opinions vary on whether that heightened level of control over personal data is necessary for consent. 113

IV. Conclusion

The various data privacy regimes dictate what constitutes valid consent to personal data collection and use. 114 It is important for both businesses and consumers to recognize what counts as consent so that they know how to proceed under the varying data privacy laws. 115 Businesses and third parties must understand the data privacy laws applicable in the jurisdiction in which they operate to ensure they comply when processing an individual’s data. 116 Furthermore, if they operate across multiple jurisdictions, they must customize their data-processing methods to fit each location’s specific requirements. 117 Consequently, they must invest significant resources in obtaining legal guidance and training their employees on compliance. 118 Likewise, consumers and data subjects should understand what constitutes valid consent in their area so they can protect their personal information. 119 Some consumers may believe their information is similarly protected irrespective of where they are located. 120 Accordingly, the inconsistencies within the law make it more difficult for consumers to control their personal data. 121 Even with data privacy’s importance, much of society is left confused by the differing consent laws. 122 Thus, uniformity among data privacy laws may help regulate industry standards, ensure that data collectors do not take advantage of the different laws, and allow consumers to better appreciate their rights. 123

---

Endnotes

---

Author

Alexandra Epstein

Alexandra Epstein is a J.D. Candidate at SMU Dedman School of Law, graduating in 2027....

View Bio →

---

Author

Alexandra Epstein