Data as Counter-Performance - Contract Law 2.0?

Name: Data as Counter-Performance - Contract Law 2.0? | Münster Colloquia on EU Law and the Digital Economy V
Brand: Nomos
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Münster Colloquia on EU Law and the Digital Economy V

Sebastian Lohsse Reiner Schulze Dirk Staudenmayer(Editor)

Nomos (Publisher)

1st Edition

Published on 9. July 2020

284 pages

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978-3-7489-0853-1 (ISBN)

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Cover
Data as Counter-Performance - Contract Law 2.0? An Introduction
I. Background
II. The response of the European legislator
III. Provision of data and conclusion and performance of contract
IV. Conclusion and outlook
Legal Nature and Economic Value of Data in the Contractual Relationship
A Market Model for Personal Data: State of Play under the New Directive on Digital Content and Digital Services
I. Data as counter-performance in consumer contracts
II. Personal data and the law of contract
1. Offer to conclude a contract
2. Acceptance by the consumer
3. Personal data as consideration?
4. Contract with or without consent to data processing
5. Obligation to provide data as counter-performance
6. Validity of contract
III. A market model for personal data
1. Why taking the risks of a market model?
2. Indications for market failure
IV. Conclusions
Regulating the Economic Impact of Data as Counter-Performance: From the Illegality Doctrine to the Unfair Contract Terms Directive
I. Introduction
II. Measuring the economic value of personal data
1. Market valuation methods
2. Individuals' valuation methods
3. Key insights
III. The legal value of personal data as counter-performance
1. Counter-performance and the Directive on Contracts for the Supply of Digital Content and Digital Services
2. General contract law and data protection law
a) Partial independence: unlawful data processing and counter-performance
aa) The role of data protection law - the Facebook example
bb) The illegality doctrine revisited: against the invalidation of contracts
b) The scope of the DCDS Directive
IV. Limits to data as counter-performance: the Unfair Contract Terms Directive
1. Market failures in data-based consumer markets
2. Applicability in parallel to the GDPR
3. Transparency obligations
4. The unfairness assessment
a) The applicability of the UCTD to the main subject matter of the contract
aa) Data as a price
bb) Broad service obligations
b) The unfairness yardstick
aa) Data protection law
bb) Data protection principles
cc) Beyond data protection law
c) Selected cases
aa) Data collection via social plug-ins and third-party tracking
bb) Broad service obligations: personalised advertisements
d) Consequences
V. Conclusion and outlook: further limits for data as counter-performance?
Management as Ownership of Data
I. Introduction
II. A hybrid private law
III. Data property law: management as ownership
IV. Concluding remarks
Data Extra Commercium
I. Introduction
II. From res extra commercium to data extra commercium
III. When the law limits trade in data?
1. Inalienability of personal data?
2. Trading personal data under the GDPR: conditions and uncertainty
a) The first variable for limited alienability of data: the dynamic and uncertain nature of data
b) The second variable: legal bases for primary data trade
c) Dynamically limited alienability rule for personal data under the GDPR
IV. The two-stage data extra commercium test
V. The unique benefits of the data extra commercium test
VI. Conclusions
Performance of Contract and Withdrawal from the Contract with respect to Data Protection - Contract Law at a Crossroads?
Right to Withdraw Consent to Data Processing - The Effect on the Contract
I. Introduction
II. Contract and standards of lawful processing
1. Separation of contract from standards of processing
2. (Re-)connecting contract and lawfulness of processing
3. The scope of Art 6(1)(b) GDPR
III. Illegality of contracts deviating from the GDPR?
1. GDPR adheres to freedom of contract
2. Illegality and voidness as the exception
IV. Impediments to performance affecting binding effect
V. Right to withdraw from consent as a part of the ordre public interne
VI. Consequences of withdrawal under an existing contract
1. Consequences under data protection law
2. Consequences in contract law
a) Replacement by an obligation to pay?
b) Termination of the contract?
3. Relevant restitutionary rules within the acquis
4. No generalization of the rules so far established!
VI. Seven short conclusions
Article 16(2) of the 'Digital Content and Digital Services' Directive on the Consequences of Termination of Contract, or the Difficult Articulation between Union Law on Consumer Contract and Union Law on the Protection of Personal Data
I. The incompleteness of the conceptualisation of the contract for the supply of digital content and digital services, at the European level
1. First stage of the dialogue: the competition law's objective of equal treatment between economic operators
2. Second stage of the dialogue: personal data are not tradeable commodities.
II. Impact of the definition, at the national level, of the nature of the contract for the supply of digital content and digital services on the contractual rules concerning termination
1. Definition of the nature of the contract for the supply of digital services at the national level: the contribution of three recent decisions of the Paris Court of First Instance
2. Future impacts on the contractual rules concerning termination
Termination of the Contract for the Supply of Digital Content and Services, and Availability of Data: Rights of Retrieval, Portability and Erasure in EU Law and Practice
I. Contract extinction and contract termination
II. Rights in play on data upon contract termination
1. Comparison between access/portability/erasure in the GDPR and retrieval/impeding use in the DCDC
2. Legislative evolution, basis and criticism
3. Kind of data included in the new rights: 'personal data provided' vs. 'any content other than personal data provided or created'
III. Comparison and interaction between the new rights
1. The right to erasure and the right to prevent further use of the data
a) Rules and exceptions
b) How
c) Proof
2. The right to portability and the right to retrieve data
a) Rules and exceptions
b) How?
c) Proof
3. Relationship between the rights at the time they are exercised
Personal Data in Data Value Chains - Is Data Protection Law Fit for the Data Economy?
I. Introduction
II. The parties involved in data value chains
1. The main types of personal data utilisation schemes
a) Type A: use for the controller's own purposes
b) Type B: use for a service provided by the controller to third parties
c) Type C: use by third party controllers after a controller-to-controller transfer
d) Type D: provision of framework for collection of data by third party controllers
2. Identifying controllers
a) Recent CJEU case law
b) Consequences for personal data utilisation in type B and type D scenarios
III. The legal basis for utilisation of personal data in data value chains (types A to D)
1. The focus in the private sector: contract, legitimate interests, and consent
a) Contract
b) Legitimate interests
c) Consent
2. Compatible secondary use
a) The 'Recital 50 debate'
b) Arguments derived from the Open Data Directive
3. Lawfulness of processing and potential for harm
a) Consent to harmful processing
b) Unfairness control - revision of the GDPR or application of rules implementing Directive 93/13/EEC
IV. Controller-to-controller transfers (type C)
1. Basic principles for controller-to-controller transfers under the GDPR
a) Principle of direct effect and equal status of controllers
b) Dual legal basis
c) Limited responsibility of supplier
2. Controller-to-controller transfers to third countries or international organisations
a) Purpose Limitation, Notice and Choice Principles
b) Accountability for onward transfer
3. Problems related to onward transfer
a) Lack of central documentation
b) Unknown identity of recipients
c) Disproportionate difficulties in exercising data subjects' rights
d) Silence as to first controller's duties of due diligence
4. Solutions
a) Revision of the GDPR
b) Contract and tort law
V. The role of producers and developers (type D)
1. The situation under Directives 2019/770 and 771
2. Data-specific product safety standards
3. Product liability law
VI. Summary
Autonomy or Heteronomy - Proposal for a Two-Tier Interpretation of Art 6 GDPR
I. Introduction
II. Mind the gap: between fundamental right and economic commodity
1. Fundamentals of platform economies
2. Legal framework
III. Bridging the gap
1. Acknowledging the other side of the coin
2. Personal data as object of trade
3. Courts as bridge builders
IV. Alterative options for synchronization
1. Personal data as condition
2. Option: extensive application of Art 6(1)(b) GDPR
3. Option: Extensive Application of Art 6(1)(f) GDPR
V. Proposal for a two-tier interpretation of Art 6 GDPR
VI. Conclusions
Data as Counter-Performance in B2B Contracts
I. Introduction
II. Data as counter-performance as a regulatory topic
III. Three examples on data as counter-performance in B2B contracts
1. Data trading platforms
2. Social networking services
3. Free online services
IV. Substantial challenges for legal policy
1. Contract law: wait and see
2. Platform law: observe the effects of new regulation
3. Data protection law: the enforcement challenge
V. Conclusion
Discussion Panel
Statement
I. Rules for goods with digital elements
II. Update obligations
III. Economic value of data
Data as a Counter-Performance
I. What are the challenges in the context of 'Data as a Counter-Performance'?
Value of Data
New legal framework?
II. Consumer protection and data protection
Consumer Rights
Data Subject
This raises the following questions:
III. 'Directive on contracts for the supply of digital content and services' (Digital content Directive)
Could the Directive shed light on the situation?
IV. Conclusion
Data as Counter-Performance & the Digital Content Directive - The End of a Debate?
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