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31 January 2024

A Review of the Consent Management Literature

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Department of Insurance and Risk Management, Faculty of Economics Management and Accountancy, University of Malta, 2080 Msida, Malta
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Information2024, 15(2), 79;https://doi.org/10.3390/info15020079
This article belongs to the Special Issue Feature Papers in Information in 2023
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Abstract

The richness and complexity of consent present challenges to those aiming to make related contributions to computer information systems (CIS). This paper aims to support consent-related research in CIS by simplifying the understanding of existing literature and facilitating the framing of future consent management research. Firstly, it outlines existing consent management research and shows how it relates to the literature in law and ethics. Secondly, it presents some fundamental explanations and definitions that must be considered for further contributions to the consent management literature. Thirdly, it identifies five types of consent-related stances often taken in the consent management literature and explains each in some detail. Fourth, it explains one of the identified types of stances (i.e., the disciplinary stance) by expanding on the links between consent as a legal construct and its ethical counterpart. Fifth, considering another of the identified types of stances (i.e., the theoretical stances normally adopted in the consent management literature), the paper presents the key requirements for legally and ethically effective consent management based on three prominent theories. Sixth, it presents the identified types of stances in a conceptual model, contending that the model is novel, relevant, understandable, and useful.

1. Introduction

Given the references to consent in such texts as the Bible [1,2], which evidence the construct’s importance in the ancient world and in such belief systems as Christianity, the influence of religious forces on modern times [2] (pp. 7–8), [3] (ch. 3), and the multidimensional historical evolution of consent in general [1,2], [3] (ch. 3–6), it is comprehensible that consent plays an important role today, including in commerce, marriage, health care, clinical research, politics, social research, sex, and online interactions; e.g., see [2,4,5,6,7,8]. It is also unsurprising that consent is discussed so widely in so many disciplines, including psychology and psychotherapy [9,10], mathematics [11], the social and political sciences [1] (pp. 26–34), [12,13], ethics [3,5,14,15], law [5,16], and computer information systems (CIS) [4,17,18,19].
The consent management literature in CIS often involves the borrowing of consent-related models from mature disciplines, namely ethics and law, which revolve around the use of consent to waive bodily privacy rights, as well as the models’ application in relation to specific concepts—namely information privacy [20,21]—to specific contexts, such as e-health care [20,21,22] or online services [4]. Hence, the profoundness and complexity of consent and the related constructs also contribute to the interdisciplinarity [23,24] and sparseness [4] (pp. 1–2) of the consent literature in CIS, which formed largely independent clusters over the past few decades, and which as a result of the current situation can be classified and organised in many ways. This contributes to a key research problem in the consent management literature in CIS, i.e., the lack of clarity regarding the stances adopted by researchers when formulating, framing and/or addressing consent-related issues.
In this paper, the consent literature in CIS is considered organised, as shown in Figure 1 and Figure 2. The literature in scope A but not B includes that on specialised topics like persuasive techniques [25,26,27], deception in e-commerce [17,28], decision-making [18,29,30], participatory design [31], information privacy [32,33], and behavioural economics [32]. The literature in scope B (i.e., the consent management literature in CIS) may be categorised as information disclosure-based, theory-based, and technical literature. Also, the technical literature can be seen as including, as a subset, what this paper refers to as the ‘e-consent literature’.
Figure 1. The relations between the literature in computer information systems (A) that is somehow related to consent and (B) where the object of research is consent management in information systems. Authors’ own compilation.
Figure 2. A categorisation of the consent management literature in CIS, limited to scope B. Authors’ own compilation.
This paper aims to help address the lack of clarity regarding the stances adopted by researchers in the consent management literature, aiming to support the further maturity, and therefore also the converging, of the consent management literature. In view of this, the research question (RQ) guiding the work presented in this paper is as follows:
Research Question. Can a conceptual model be established—based on a review of existing consent management literature and conceptual investigations—which adds clarity regarding the stances adopted by researchers when formulating, framing and/or addressing consent-related issues in the domain of consent management in CIS?
Towards answering this RQ, this paper starts to address the following six exploratory questions (EQs), which reflect a focus on health care and clinical research, attributable to the strong links between informed consent and the medical field:
  • Exploratory Question 1. What research was conducted in relation to consent and consent management in the context of CIS, and how does this relate to the consent literature in such other disciplines as law and ethics?
  • Exploratory question 2. What are some fundamental notions that must be considered towards further contributions to the consent management literature in CIS?
  • Exploratory Question 3. Which types of stances, and which stances, are often taken in relation to consent when contributions are made in the consent management literature?
  • Exploratory Question 4. With reference to disciplinary and other stances, how does consent as a legal construct relate to consent as an ethical construct?
  • Exploratory Question 5. Considering the theoretical stances normally adopted in the consent management literature, which currently reflect a focus on Faden and Beauchamp’s, Berg et al.’s, and Manson and O’Neill’s theories, what are the key requirements for legally and ethically effective consent management?
  • Exploratory Question 6. Can the consent-related stances identified in Section 3 be presented in a relevant and useful conceptual model?
In view of the sparsity, interdisciplinarity and immaturity of the consent management literature and the conceptual nature of consent as a predominantly legal and ethical construct, the purpose of this paper was, largely, to enable a deeper understanding of the consent management literature based on a selection from such literature, and of how the selected literature relates to consent. Thus, the answers provided to the RQ and the EQs were based on a traditional literature review that maps the selected consent management literature and on a conceptual investigation that enables an understanding of consent as a construct based on a selection of literature predominantly from law and ethics. The deeper understanding emerging from these answers may enable future scoping and/or systematic reviews relating to consent management, which would probably involve substantially narrower and more focused research questions, as well as pre-defined and explicit inclusion and exclusion criteria, and enable the refinement of the mapping of the consent management literature, as well as refinements or extensions of the conceptual model proposed in this paper, in line with what is stated in Section 6.2.1.
The addressing of EQ 1 is considered useful insofar as it facilitates understanding of the status quo relating to ‘Consent management’ in CIS, especially for audiences unfamiliar with the complexity of consent or with the various types of links between consent, related concepts, and CIS. The intended audience includes information science researchers, technology philosophers and lawyers, ontologists, and practitioners. EQ 1 is addressed by the introduction and categorisation of the consent management literature, as provided in this section, and by answering the remaining EQs in Section 2, Section 3, Section 4, Section 5 and Section 6.

2. Consent-Related Definitions and Explanations

This section includes an answer to EQ 2. Thus, it informs on the nature of consent, reflecting one of two fundamental questions addressed in the ethics literature on consent [6] (p. 84); i.e., what is the nature of consent? More specifically, Section 2.1, Section 2.2, Section 2.3, Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.8 and Section 2.9 include definitions and explanations regarding the etymology of consent and consent as a verb, a noun, and a construct. It also defines and explains key consent-management terms, namely ‘consent management’, ‘object of consent’, ‘consent transaction’, and ‘consent process’, and includes an explanation regarding the links between ‘consent’ and ‘informed consent’. These definitions and explanations can simplify consent-related communications and are especially important to CIS researchers insofar as they range from the conceptual and theoretical aspects of consent, often examined in the legal and ethical literature, to the procedural aspects, often addressed in the CIS literature. The definitions and explanations are also essential for framing the answers provided to some of the other EQs.

2.1. Etymology of Consent

Etymologically, the verb ‘consent’ is rooted in classical Latin and can be traced back to the 12th century. The former part of the term, ‘con’, is rooted in the archaic form of the classical Latin words ‘com’ and ‘cum’, which refer to the prefix meaning ‘with’. The latter part, ‘sent’, is rooted in the Latin word sentire, which means ‘to perceive, feel’. Hence, the literal meaning of ‘consent’ is ‘feel together’. The term was attested as a noun from the 13th century [34].

2.2. Consent as a Verb

Consent, as a verb, refers to the act of ‘…[giving] an affirmative reply to…’ or ‘…respond[ing] favourably to…’ [35]. For example, by signing a consent form, a patient, A, consents (or signifies consent) to a surgeon, B, to perform surgery on A. Similarly, a party, X, may consent, with respect to the consent request made by another party, Y, internally, in X’s mind. The widely accepted ontological view is that even if there could be permission without its signification, it is the permission’s signification to another that transforms the relations between the relevant parties, rendering the consent useful [36] (pp. 9–11). Hence, Definition 1 is adopted in this paper.
 Definition 1 
(Consent: verb). To provide affirmative signification to another.

2.3. Consent as a Noun

Consent, as a noun, refers to ‘…[p]ermission to do something…’ [35]. For example, by signing a consent form, a patient, P, grants a consent (or permission) to a surgeon, Q, to operate on P. Although it may be argued that P can signify consent to himself/herself, in P’s mind, and that, therefore, a signification to another is inessential, the definition adopted in this paper (see Definition 2) renders the signification to a second party essential.
 Definition 2 
(Consent: noun). Permission to do something, which is signified to another.

2.4. Consent as a Construct

Given the definition of ‘construct’ as ‘…[a]n abstract or general idea inferred or derived from specific instances…’ [35], the following definition is adopted for ‘consent’ as a multifaceted construct:
 Definition 3 
(Consent: construct). An abstract idea derived from specific instances in relation to consent as a verb and as a noun.

2.5. Consent Management

‘Consent management’ is defined in two senses, as follows:
 Definition 4 
(Consent management: sense1). The act of managing the formation, use, and maintenance of one or more tools/artefacts that enable the execution of a consent transaction and, therefore, potentially, the transformation of the legal and/or ethical relations between the parties involved in the consent transaction.
 Definition 5 
(Consent management: sense2). A research area in direct relation to consent management in sense1.

2.6. Object of Consent

‘Object of consent’ is defined as follows:
 Definition 6 
(Object of consent). An action that is planned, at least to an extent, which would breach the legal and/or ethical rights of an individual, A, if it occurs in the absence of A’s consent or of consent by someone else, B, who acts on behalf of A.

2.7. Consent Transaction

Based on the ontological stances taken in this paper (see Section 3.2) and on Kleinig’s work [36], a ‘consent transaction’ is defined as follows. The definition applies to both implicit and explicit consent, as well as to both opt-in and opt-out consent:
 Definition 7 
(Consent transaction). A three-place event that involves two participants, A and B, and an object of consent, O. The event involves (1) A’s consent decision, which occurs in A’s mind with respect to O, (2) A’s signification of A’s consent decision to B, and as a result, possibly, (3) successful alteration of the legal and/or ethical relations between A and B; see Figure 3.
Figure 3. A consent transaction. Authors’ own compilation.

2.8. Consent Process

The definition proposed for the ‘consent process’ is as follows and applies to both implicit and explicit consent, as well as to both the opt-in and opt-out forms of consent:
 Definition 8 (Consent process). 
A course of action that involves (and frames) the occurrence of a consent transaction and the actions that occur before and/or after the consent transaction.

2.9. Consent Vis-à-Vis Informed Consent

The key difference between ‘consent’ and ‘informed consent’ is that the latter makes a reference to the consent requester’s legal duty, by the legal doctrine of informed consent, to disclose information about the object of consent to the consent decision-maker. In comparison, while the records of information disclosure by the physician to the patient date back to the 19th century [3] (pp. 53–55), the legal duty for such disclosures was formally introduced in 1955 in Hunt v. Bradshaw, 88 S.E. 2d 762 (N.C. 1955). The duty was then established more formally in Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170 (Cal. Ct. App. 1957) [3] (pp. 125–129), [5] (p. 44), leading to the concatenation of the terms ‘informed’ and ‘consent’. Subsequent cases, including Natanson v. Kline, 350 P.2d 1093 (Kan. 1960) and Mitchell v. Robinson, 334 S.W.2d 11 (Mo. 1960), have reinforced and further shaped both the duty and the concatenation [5] (pp. 43–46).
The linking of ‘informed’ and ‘consent’ has contributed to linguistic confusion, to the point that ‘consent’ and ‘informed consent’ are often used interchangeably in the literature. For instance, while Faden and Beauchamp argue that the consent decision-maker’s voluntariness and understanding are more important than the consent requester’s information disclosure [3] (p. 276), they consistently use ‘informed consent’ instead of ‘consent’ in [3]. Beauchamp has addressed this anomaly by stating a preference for ‘consent’ instead [37] (p. 55), sustaining the relative importance of the consent decision-maker’s understanding and voluntariness over that of the consent requester’s information disclosure. It is important to consider such linguistic confusions in contemporary research because, as Beauchamp claims, they influence the formation of consent theory and law [37] (p. 55). Similar confusions seem to influence the nature of the literature in CIS, too. In this paper, the terms are used interchangeably, and attempts are made to balance: (1) how the terms are used in the cited literature, and (2) abidance by the rationale described above, i.e., that informed consent is a kind of consent with a focus on the legal condition of information disclosure.

7. Conclusions

Consent is a long-standing and multifaceted construct in relation to which literature may be found in various disciplines and multiple contexts. The richness and complexity of the concept present challenges to those aiming to contribute to CIS. This paper aimed to support consent-related research in CIS by simplifying the understanding of existing literature and facilitating the framing of future consent management research. Firstly, it outlined existing research in relation to consent and consent management in the context of CIS and showed how such research relates to the literature in other disciplines, such as law and ethics. Secondly, it presented some fundamental explanations and definitions that must be considered for further contributions to the consent management literature in CIS. Thirdly, it identified five types of stances often taken in relation to consent when contributions are made in the consent management literature and explained each in some detail. Fourth, it explained one of the five identified types of stances (i.e., the disciplinary stance) by expanding on the links between consent as a legal construct and consent as an ethical construct. Fifth, considering another of the five identified types of stances (i.e., the theoretical stance) and the theoretical stances normally adopted in the consent management literature, the paper presented the key requirements for legally and ethically effective consent management based on three prominent theories. Sixth, it presented the five stances identified in Section 3 in a conceptual model, justifying the view that the model is novel, relevant, understandable, and useful.

7.1. Theoretical Contributions

The conceptual model proposed in Section 6 is a theoretical contribution to CIS, which, as discussed in Section 6.2, is novel, relevant, understandable, and useful. Based on a review of the selected consent management literature and a conceptual investigation, the model presents five types of consent-related stances and several stances relating to each type. To the authors’ knowledge, this is the first time such a model has been made available in the CIS or any other literature.

7.2. Practical Implications

The traditional review and conceptual investigation presented in Section 1, Section 2, Section 3, Section 4 and Section 5 enabled a thorough understanding of the selected consent management literature and of consent as a predominantly legal and ethical construct. Additionally, the sections enabled the development, framing, and understanding of the conceptual model proposed in Section 6, which has multiple practical implications. The model enables a wide range of actors—e.g., information science researchers, technology philosophers and lawyers, ontologists, and practitioners—to swiftly map contributions made in the consent management literature to the identified stances. This, in turn, enables better understanding that can lead to such benefits as the identification of gaps, inaccuracies, and opportunities for improvement in consent management (and possibly other) literature. Additionally, the conceptual model enables further research and discussion, including its own refinement, extension, and possible revisions.

7.3. Future Research

The conceptual model is not exhaustive. Indeed, as shown in Table 1, not all the consent-related stances were identified. Likewise, no claim is being made that all types of stances were included in the model. Hence, considering additional consent management literature and further conceptual investigations will likely enable the model’s extension and refinement. Additionally, as shown in Section 6.2.2, the proposed conceptual model can enable the consideration of existing knowledge, constructs, and issues from new consent-related perspectives, leading to novel research. Furthermore, since the conceptual model enables a better understanding of the consent management literature and provides additional structure for framing such literature, it also paves the way for more elaborate and systematic literature reviews.

Author Contributions

Conceptualization, C.B.W. and S.G.; methodology, C.B.W. and S.G.; software, C.B.W.; validation, C.B.W. and S.G.; formal analysis, C.B.W. and S.G.; investigation, C.B.W. and S.G. resources, C.B.W.; data curation, C.B.W. and S.G.; writing—original draft; preparation, C.B.W.; writing—review and editing, C.B.W. and S.G.; visualization, C.B.W. and S.G.; supervision, S.G.; project administration, C.B.W.; All authors have read and agreed to the published version of the manuscript.

Funding

This research received no external funding.

Institutional Review Board Statement

The study did not require ethical approval, but was sent for record purposes to the Faculty of Econoics, Management and Accountancy, University of Malta Ethics Committee (FREC-URECA)- FEMA-2024-00028.

Data Availability Statement

The data presented in this study are available on request from the corresponding author.

Conflicts of Interest

The authors declare no conflict of interest.

Abbreviations

The following abbreviations are used in this manuscript:
AIArtificial Intelligence
CDACommunications Decency Act
CISComputer Information Systems
EQExploratory Question
EUEuropean Union
ICTInformation and Communications Technology
IoTInternet of Things
LLMLarge Language Model
RQResearch Question
USUnited States

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