Data as Counter-Performance: What Rights and Duties do Parties Have?

• Author: Axel Metzger
• Position: Dr. iur., LL.M. (Harvard), Professor of Law, Humboldt-Universität zu Berlin
• Pages: 2-8

2017

Axel Metzger

2

1

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

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

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

A. Introduction

1

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.

1

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., : “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.