Personal Data and Contract Law: Challenges and Concerns about the Economic Exploitation of the Right to Data Protection

The so-called ‘free’ digital business models – users are not requested to pay a price, but to disclose personal data – are a very common reality. To tackle this phenomenon, the European Commission’s proposal of Directive on contracts for the supply of digital content used the concept of personal data as counterperformance. This stance proved to be quite problematic. It has been opposed by the European Data Protection Supervisor (EDPS) arguing that it should not be possible to subject the fundamental right to data protection to a commercial transaction. This article dwells upon the economic exploitability of the right to data protection, showing that Article 8 of the EU Charter of fundamental rights and the related case law of the CJEU do not justify the concerns raised by the EDPS. This seems to be confirmed by the fact that the legal traditions of the EU Member States recognize that personality rights can be the object of a contract, although they limit to a certain extent the private autonomy of the parties. Thus, the commodification of personal data – like the commodification of other incorporeal attributes of personality – is not banned. Rather, there is now a policy issue about how to handle the risk of personalized discrimination and the problem of inequality of bargaining power in digital business models based on personal data. In this respect, political decisions should not be too affected by conceptual barriers between data protection law and contract law. In line with this position, the author argues that the economic exploitation of the right to data protection should not be considered a waiver of the same right.