Data-Related Aspects of the Digital Content Directive

Author:Axel Metzger - Zohar Efroni - Lena Mischau - Jakob Metzger
Pages:90-109
 
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2018
Axel Metzger, Zohar Efroni, Lena Mischau and Jakob Metzger
90
1
© 2018 Axel Metzger, Zohar Efroni, Lena Mischau and Ja kob 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, Zohar Efroni, Lena Mischau and Jakob Met zger, Data-Related Aspects of th e Digital
Content Directive, 9 (2 018) JIPITEC 90 para 1.
Keywords: Data as counter-performance; Data portability; Conformity; Embedded digital content and services;
Digital Content Directive; General Data Protection Regulation (GDPR); Personal Data; Contract law;
Consumer protection law
A. Executive Summary
1
The legislative initiative of harmonising certain
aspects of contracts for the supply of digital content
and services across the EU via a specic directive
(DCD) is certainly a welcome and necessary one.
While examining scenarios in which consumers
provide data (as opposed to money) in exchange
for such content or services, it is important that
the concept and ideally the specic wording of
“data as counter-performance” is preserved in
the language of the directive, and that the directive
covers both personal and any other data in this
context. The directive should further apply to data
irrespective of the question whether the consumer
provides them actively or passively.
2 It is of crucial importance to establish a harmonised
level of consumer protection for embedded digital
content and services by covering the digital element
of smart goods. The existing differentiations
between stand-alone and embedded digital
content / services at the scope level should be
removed. Specic rules for embedded digital content
/services should be drafted and applied only when
absolutely necessary. In addition, the consumer
protection implications arising from multi-party
scenarios in the context of supplying smart goods
must be more intensively investigated and expressly
addressed in the nal text of the directive.
3
On the issue of portability of personal data, this
matter should be governed exclusively by the
GDPR. Regarding user-generated content (UGC)
that is not personal information, the portability of
such content should not be undermined by too
broadly dened exceptions. The right to retrieve
such content should only be excluded if it cannot
be made available without disproportionate and
unreasonable effort. Traders should have a clear duty
Data-Related Aspects of the
Digital Content Directive
by Axel Metzger, Zohar Efroni, Lena Mischau and Jakob Metzger*
Research Group 4 (“Data as a means of payment”) at the Weizenbaum Institute for the Networked Society
– The German Internet Institute.
Data-Related Aspects of the Digital Content Directive
2018
91
1
to apply state-of-the-art technology to guarantee
that consumers’ UGC can be extracted separately,
and that consumers’ right to retrieve UGC should
apply both against the trader and against any third
party that stores and/or processes the content.
4
A harmonised level of consumer protection under
the directive in the context of conformity should
principally apply in an equal manner to consumers
who provide data as counter-performance and
paying consumers alike. Objective conformity
requirements play an important role within the
harmonised consumer protection scheme, and the
type of counter-performance (data or price) should
not result in lower requirements in the case of
data as counter-performance contracts. However,
the application of data protection law to some
situations that are commercial in nature (such as
the right to termination) marks the limits of the
non-discrimination principle in favour of consumers
who extend their personal data in exchange
for commercial offers. The directive should not
intentionally inhibit the ability of domestic contract
laws to provide remedies to traders in the appropriate
case and to the extent that such remedies are in line
with the harmonised data protection law.
B. Introduction
I. The Weizenbaum Institute
for the Networked Society
5
The Weizenbaum Institute1 investigates the current
changes in all aspects of society occurring in
response to digitalisation. Its goals are to develop
a comprehensive understanding of these changes
based on rigorous academic analysis and to offer
informed strategies to address them at a political
and economic level.
6 The Weizenbaum Institute is funded by the Federal
Ministry of Education and Research. The consortium
is coordinated by the Berlin Social Science Center
(“WZB”) and includes the four Berlin universities –
* Prof. Dr. iur. Axel Metzger, LL.M. (Harvard), Founding
Director, Weizenbaum Institute for the Networked
Society, Berlin, Professor of Law, Humboldt-Universität
zu Berlin; Dr. iur. Zohar Efroni, LL.M. (Cardozo),
Research Project Lead, Weizenbaum Institute for the
Networked Society and Humboldt-Universität zu Berlin;
Lena Mischau, Research Associate, Weizenbaum Institute
for the Networked Society and Humboldt-Universität zu
Berlin; Jakob Metzger, Research Associate, Weizenbaum
Institute for the Networked Society and Humboldt-
Universität zu Berlin.
1 This position paper represents exclusively the opinion of its
authors, who are members of the Research Group “Data as a
means of payment” at the Weizenbaum Institute.
Freie Universität Berlin, Humboldt-Universität zu
Berlin, Technische Universität Berlin, Universität
der Künste Berlin – as well as the Universität
Potsdam and the Fraunhofer Institute for Open
Communication Systems (“FOKUS”).
7 The Berlin-Brandenburg Consortium focuses on the
interaction of the social sciences, economics and
law with design research and computer science.
Interdisciplinary basic research and the exploration
of concrete solutions in practice-based labs are
combined with knowledge transfer into politics,
business, and society. The conceptual design of the
Institute aims to achieve scientic excellence with
a nationwide and international impact, as well as
networking with cooperation partners from civil
society, business, politics, and the media.
II. Purpose and Methodology
8 Our mission is to highlight a number of important
issues within the larger debate around the Digital
Content Directive (“DCD”)2 and its legislative process.
We focus for the most part on situations where
consumers, in exchange for digital content / services,
provide data and not money. Within our selected
topics, we bring forward several recommendations
concerning the preferred approaches with the aim
of contributing to the continuing discussions they
have evoked. As the legislative process is reaching
its most critical stages, we present solutions that
will hopefully be taken into consideration while the
EU trilogue participants hammer out the nal text
of the DCD.
9
The structure of this position paper is as follows:
rst, we present the approaches of the European
Commission (“COM”), the Council of the European
Union (“Council”), and the European Parliament
(“EP”) as reected in their respective proposals in
the form of a comparative table juxtaposing the
relevant texts one next to the other. Then, for each
topic, we add comments concluded by concrete
recommendations.
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Among the topics that are sought to be regulated
under the directive, we focus on the principal
question of (personal) data as counter-performance
in the context of business-to-consumer contracts as
well as on related issues of embedded digital content,
portability rules, and conformity requirements.
2 COM, ‘Proposal for a Directive of the European Parliament
and of the Council on certain aspects concerning contracts
for the supply of digital content’, COM(2015) 634 nal,
2015/0287 (COD), 09.12.2015 (hereinafter referred to as
“DCD-COM”).

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