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Data as Counter-performance: A New Way Forward or a Step Back for the Fundamental Right of Data Protection?

A Data Protection Analysis of the Proposed Directive on Certain Aspects for the Supply of Digital Content

Citation: , Data as Counter-performance: A New Way Forward or a Step Back for the Fundamental Right of Data Protection?, in: Jusletter IT 22 February 2018

With the proposed Directive on digital content the Commission has tried to give legal reality to the fact that individuals «pay» for otherwise «free» services online with their personal data («data as counter-performance»). The legislative procedure has revealed severe doubts on the compatibility of this concept with the GDPR and the fundamental rights nature of data protection. This paper aims for reconciliation by considering the Directive as another means of data protection as a fundamental right, and by arguing for the enhanced practical opportunities using European consumer law can offer.

Table of contents

1. Introduction
2. Proposed Directive on certain aspects for the supply of digital content
3. Key areas of criticism and their treatment in the legislative negotiations
- 3.1. Incompatibility with the GDPR
- 3.2. Conflict with the fundamental rights nature of data protection
- 3.3. Legitimisation of the business model of free services
4. Arguments for reconciliation
- 4.1. Proposal could be applied in parallel to the GDPR
- 4.2. Obligation for the EU legislator to protect personal data
- 4.3. Pragmatic approach to a new business model
5. Concluding remarks