Within the framework of Transformative Private Law, a leading role must necessarily be recognized for Contract Law, traditionally both a receptor for social demands and an engine of economic innovations in an unceasing circular process. As a flexible tool capable, at the same time, of adapting to the needs of reality and inducing deep changes in it, the figure of contract, in line with what has repeatedly occurred throughout its history, seems to be called upon to play a key role also in today’s Digital Economy, including the last frontier of the (Big) Data Economy, which is characterized by entirely new business models in which data has assumed a crucial productive and economic importance. In this context some recent EU legislative instruments stand out that have included within their scope the case in which for a certain good or service a price is not paid but rather personal data are provided (data as counter-performance, “DACP”).
DACP in Recent EU Directives
Reference is made, first of all, to Directive (EU) 2019/770, whose Article 3 refers the newly introduced regulation of certain aspects concerning contracts for the supply of digital content and digital services also to the case in which “the trader supplies or undertakes to supply digital content or a digital service to the consumer, and the consumer provides or undertakes to provide personal data to the trader”, with certain exceptions relating to the purposes of the data processing by the trader. Indeed, the case is excluded in which “the personal data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital content or digital service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose”. This provision represents the final result of a long debate, involving exponents of social groups, academic personalities, institutional actors, and concerning points such as the DACP notion itself and its regulation, that arose with the failed Commission’s Proposal on a Common European Sales Law and then accompanied the entire legislative process related to Proposal of the Digital Content Directive (“DCD”). See the contributions collected in Schulze-Staudenmayer-Lohsse (Ed.) 2017, and in Lohsse-Schulze-Staudenmayer (Ed.) 2020.
A few months later, the relevance of the DACP theme was further extended by the adoption of Directive (EU) 2019/2161, whose objective is the better enforcement and modernization of Union consumer protection rules. Indeed, Article 4 introduces into the Directive (EU) 2011/83 on consumer rights a new provision by which this instrument applies also “where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader”, with an exception similar to that provided by the DCD. See, for all, Đurović 2020, 67-68.
DACP and Data Protection Law
Such provisions are destined to raise a notable series of interpretative problems, ranging from single detailed aspects of application to the very cornerstones of the overall systematic framework. Already at first glance it is not hard to see the difficulties that will be encountered in coordinating these new legislative instruments with the Regulation (EU) 2016/679 (“GDPR”), since the latter remains fully applicable to the processing of personal data covered by the former (see Versaci 2018, 374-392).
Just think, for example, of the need to identify the condition of lawfulness of the processing of personal data provided by the consumer to the trader in exchange for the digital content, which cannot be considered to exist by the very fact of being covered by the Directive, but must always be anchored within the general provisions of the data protection legislation. In this regard, one cannot overlook the suspect, in relation to the condition of freedom of consent of the data subject to the processing, with which the GDPR looks at the consent “tied” to the supply of goods or services. Indeed, Article 7(4) of the GDPR provides that “when assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract”. Thus, this is linked, on the one hand, to a broader reflection on the old and never dormant issue relating to the legal nature of the consent and, on the other hand, to the problems emerging from the comparison between the aforementioned cases in which the applicability of the Directives is excluded and those in which the lawfulness of the data processing, according to the GDPR, relies on grounds other than consent. See, in the first instance, Schmidt-Kessel 2019, 75-85.
Another aspect, perhaps the most interesting one from this point of view, relates to the withdrawal of consent by the consumer-data subject, especially for what concerns its applicability and its consequences for the legal relationship with the trader (e.g. whether it may imply the exemption of the trader from his obligations or not). In the same way the issues related to the case of invalidity of the consent to the data processing stand out. See Zoll 2017, 182-188; Schmidt-Kessel 2020, 127-146.
DACP and General Theory of Contract
Such issues project towards the need for an in-depth investigation on the nature and the characteristics of the legal relationship involving the exchange between data and services. First of all, it is a question of understanding whether in the DACP arrangement there is actually a contract, or rather a legal transaction of a different nature. Contrary to what it might seem at first glance, the answer is by no means obvious, but rather entails the analysis of several highly problematic elements, such as the relationship existing between the consent to the transaction and consent to the processing of personal data, or the implication of interests and values that essentially have an existential connotation (see, e.g., Janal 2017, 271-291; Metzger 2020, 23-46). This last point implies the controversial theme of the “commodification” of personal data, as well as that of their “monetization”, which involves the offer of money in exchange for the provision of personal data. Indeed, even if personal data have undoubtedly acquired an economic value and are included in a ”commercialization” circuit, it cannot be overlooked how they, as evocative elements of traits pertaining to the person, are still intrinsically connected to fundamental rights, and so to the sphere of “being”. In principle, the sphere of being does not reconcile well with the eminently patrimonial perspective, which is connected to the sphere of “having”, within which the figure of the contract is inscribed (see Zech 2016, 66-69; Perlingieri 2019, 613-629).
In any case, beyond the problem strictly inherent to the dogmatic qualification of the DACP transactions, which undoubtedly may have a very significant impact on the general theory of contract, remain many issues related to the identification of the discipline applicable to them. In this regard, by way of example, it is sufficient to mention the applicability of the remedies provided for synallagmatic contracts, or of the control of unfairness on consumer contracts terms. In order to deal with such a varied and complex congeries of issues and problems relating to the DACP topic, a correct methodological approach requires starting from a careful analysis concerning the classification of personal data as legal goods and the identification of the subjective legal situations recognizable over them (see Viterbo 2016, 593-622; De Franceschi 2017).
Poly-sense Transformative Implications of DACP
Such an investigation, although particularly extensive and complex, is necessary to prepare a convincing reconstruction about the issues concerning the idea and concept of DACP, also in view of the implementation of the aforementioned Directives in the national legal systems. Therefore, a careful consideration is needed of the problems raised by the DACP transactions in light of the peculiar characteristics of each legal system, starting with the respect for the fundamental values shaping them. Furthermore, this approach requires a careful reconsideration in the light of the renewed regulatory system of problems such as the relationships between contract, other legal transactions and non-economic interests, on the one hand, and between self-determination, power of disposition and existential situations, on the other. All of this is necessary in order to ensure a composition adequate to meet a range of heterogeneous needs and interests such as consumer protection, protection of the fundamental rights of the human person, protection of the individual’s economic interests, and development of economic initiative and, therefore, of the market. Alongside and as a consequence of this, the transformative significance of research on this very challenging topic is clear, with regard both to the understanding of crucial crossroads of the legal system, including some of its traditional dogmas, and for the political, economic and social fabric, at least at the European level.
(Photo: Markus Spiske)