Data as Counter-Performance
What Rights and Duties do Parties Have?
by Axel Metzger, Dr. iur., LL.M. (Harvard), Professor of Law, Humboldt-Universität zu Berlin
© 2017 Axel Metzger
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Recommended citation: A xel Metzger, Data as Counter-Perfor mance: What Rights and Duties do Pa rties Have?, 8 (2017)
JIPITEC 2 para 1.
Keywords: Digital content; contracts; consumer; personal data as counter performance; directive; contract law
both parties. For the consumer, the proposed Direc-
tive clarifies that the data subject providing its per-
sonal data to the supplier shall have the same rights
as in the case of a money consideration paid to the
supplier. However, what are the duties of the con-
sumer and what are the rights of the supplier? The
proposed Directive does not address this issue. The
article provides some initial answers based on Ger-
man contract law.
Abstract: Article 3 para. 1 of the proposed Di-
rective on certain aspects concerning contracts for
the supply of digital content recognises that con-
sumers may use their personal data as counter-per-
formance in exchange for contents or services. This
approach confirms a social practice, which may be
observed everywhere in the digital environment. Ac-
cepting personal data as counter-performance in bi-
lateral contracts intensifies the rights and duties of
The legal construction of “free services” on the
Internet, which are provided to consumers while
their personal data is requested or harvested,
is currently undergoing a change of paradigm.
Until recently, service providers like social media
services, search engines, communication services,
and hosting platforms, presented their business
model as purely ad-funded services based on a two-
sided market, in which the advertisers pay for the
service and the users only have the advantages
of attractive and cost-free services.
If the service
asked the users consent to any data processing,
this consent was treated under the old paradigm as
being independent from the supply of the service.
This idea of two independent legal transactions –
supply of service and transmission of data – has
been criticised by some commentators in recent
1 See, e.g., <www.facebook.com>: “Sign Up. It’s free and
always will be.”
years.2 The European Commission’s - Proposal for
a Directive on certain aspects concerning contracts
for the supply of digital content of December 20153
(DSDC) may now change the landscape.
B. Which scenarios are covered
by the Directive?
2 The DSDC proposes to introduce harmonised rules
on contracts for the supply of digital content in
a broad sense, also comprising many services
contracts, including services allowing the creation,
processing, or storage of data and services allowing
sharing of and any other interaction with data in
digital form provided by other users of the service,
see Art. 2 N° 1. For all those contracts, Art. 3 para.
2 See e.g. Bräutigam MMR 2012, 635; Buchner DuD 2012, 39, 41;
Rogosch, Die Einwilligung im Datenschutzrecht, 41.
3 COM(2015) 634 nal.