DIGITAL CONSENT AND (UN)INFORMED DECISION-MAKING: A COMPARATIVE LEGAL PERSPECTIVE BETWEEN BRAZIL AND INTERNATIONAL DATA PROTECTION FRAMEWORKS

Abstract

Given the increasing centrality of consent as a legal basis for the processing of personal data in the digital environment, particularly following the consolidation of the General Data Protection Law (LGPD), consent has been recognized as a legitimate legal foundation. However, digital consent demonstrates limitations in terms of its material effectiveness, as users’ decision-making is influenced by informational asymmetries.The main objective of this research is to analyze the limits of consent as a legal basis for the processing of personal data under the LGPD, from a comparative perspective with international regimes, especially the General Data Protection Regulation (GDPR). To this end, the study examines the legal foundations of consent, identifies cognitive and structural limitations affecting user decision-making, and compares the effectiveness of consent across different legal systems. Methodologically, this is a qualitative study based on a systematic literature review. The analysis is complemented by a comparative legal approach and interdisciplinary contributions from behavioral economics and decision-making psychology, allowing for a critical evaluation of the effectiveness of consent beyond its formal validity.The results indicate that, although legally valid, consent does not ensure a fully informed decision, reproducing structural limitations also observed in international regimes. Furthermore, these limitations are intensified in the Brazilian context, which is marked by structural inequalities, deficits in digital literacy, and informational vulnerabilities that further compromise the decision-making autonomy of data subjects. It is concluded that the consent-centered model presents significant shortcomings as a mechanism for personal data protection, requiring the adoption of complementary regulatory approaches. In this regard, the study highlights the need to strengthen the institutional capacity of regulatory authorities, expand digital literacy policies, develop mechanisms that prioritize the regulation of data use rather than merely its collection, and incorporate critical perspectives, such as decolonial approaches, capable of addressing the social and informational specificities of the Brazilian context.