[belorn]

Lets extrapolate this to the real world and see if implied permission works.

You actively walk into a bar. For what ever reason, you can't pay your bill so the bar owner break your leg as a lesson. Alternative, the bar owner will sell you into slavery so you can pay your bill.

Should we imply that you gave permission for all this by walking into the bar? What if there is a 400 pages long contract, which by entering, you silently agreed to by staying in the bar?

Implied permission created from non-action are a horrible concept that only exist on-line.

[jbigelow76]

Your analogy doesn't make any sense. There are no implications since the already in place rules of commerce would preclude any ambiguity.

I'll throw you and your analogy a bone though. You walk into a bar, bars are smokey, you don't want to smell like smoke, but you want a cocktail more than you don't want to smell like smoke. You've implied that you're okay with smelling like smoke as long as you get your martini.

[belorn]

The rules of commerce exist outset the net, I fully agree on that. If we applied similar rules on the net, the implied permission will go away in favor of a common set of rules.

And that is what the EU is trying to do for private data. When it is illegal to track users, then users can't silently give permission by visiting the website. The whole question about implied permission goes away when rules of commerce specify what is and isn't allowed.