EU reforms on consent fatigue: What Canadian marketers need to know

The proliferation of cookie banners and consent pop-ups across EU digital platforms has reached a critical threshold. Users are overwhelmed, and regulators have taken decisive action. The EU now officially recognizes that "consent fatigue” undermines the very privacy protections these mechanisms were meant to deliver. This regulatory acknowledgment validates insights the CMA documented in our 2022 report, Privacy Law Pitfalls: Lessons Learned from the European Union.

As the European Commission undertakes targeted reforms to move from more consent to meaningful consent, there are crucial lessons for Canadian marketers navigating our own evolving privacy landscape.

What consent fatigue really costs

Consent fatigue isn't just user annoyance: it's a systemic failure. Overwhelmed by cookie banners and privacy notices before accessing content, users reflexively click "Accept All" without reading a single word. When consent becomes meaningless, everyone loses: consumers are unaware of what they're agreeing to, and organizations lose the opportunity to strengthen consumer trust.

This phenomenon has intensified since the GDPR's implementation, exactly as researchers predicted and as the CMA cautioned Canadian policymakers to avoid. More stringent consent requirements weaken consent efficacy, as consumers bombarded with requests might make choices that don’t reflect their true preferences. In fact, a global survey found that 73% of consumers report feeling overwhelmed by the number of consent requests when using online services, signaling that the current system isn't working.

EU regulators chart a new course

Recognizing that current consent mechanisms have created user fatigue that undermines effective privacy protection, the European Commission is pursuing "pragmatic and immediate clarifications to limit consent fatigue while providing legal clarity on rightful access and processing."

Key solutions include:

• Modernized ePrivacy provisions: Targeted amendments to cookie rules that could expand exemptions for low-risk data uses like security and basic audience measurement, and potentially allow browser-level consent settings that websites would automatically comply with.
• Enhanced data availability: The Commission is seeking updates to "outdated rules" to provide businesses with clearer data access while maintaining privacy safeguards.
• GDPR refinements, not overhauls: The EU is conducting targeted GDPR reviews focused on practical implementation improvements rather than fundamental reforms. The goal: streamline consent processes to make them clearer and more meaningful, shifting from repetitive clicks toward genuine user understanding.

The Canadian context: avoiding EU pitfalls

The EU's course correction directly validates the CMA's 2022 analysis, which documented seven critical GDPR pitfalls. Our research revealed that the GDPR's approach:

• Creates staggering regulatory burdens for European governments
• Disproportionately impacts SMEs with compliance costs exceeding $70,000 CAD
• Triggers innovation suppression, with 75% of German businesses reporting failed projects

Most critically, the GDPR's one-size-fits-all human rights framework fails to differentiate between high-risk government surveillance and routine commercial activities that benefit consumers.

Yet Canadian consumers actually want these beneficial uses. Almost twice as many Canadians agree that organizations should be able to use data as long as they safeguard people's personal information.

What this means for Canadian marketers

Canadian policymakers have an opportunity to update PIPEDA with a law that reflects and supports local conditions, practices and expectations, with the goal of achieving equivalent privacy protection as opposed to alignment to another jurisdiction's legislative approach.

The EU's consent fatigue acknowledgment creates an opportunity for Canada to lead with a more sophisticated approach. Effective privacy frameworks should:

• Embrace proportionality: Distinguish between low-risk business activities and genuine privacy threats
• Support legitimate interests: Enable routine marketing activities that benefit consumers without requiring explicit consent for every interaction
• Maintain flexibility: Use principles-based approaches rather than prescriptive rules that become outdated

Looking forward

The European Commission's shift toward "meaningful consent" marks important recognition by policymakers that privacy and performance can coexist when regulations are thoughtfully designed. As Canada advances federal privacy modernization, the lessons are clear: effective privacy protection requires nuanced understanding of how data use creates value for both businesses and consumers.

The EU's consent fatigue crisis proves that good intentions without practical design can undermine the very objectives regulators seek to achieve. The path forward demands what the CMA advocated in 2022: a made-in-Canada approach that balances effective privacy protection with the enormous social and economic benefits of responsible data use.