Abstract
AbstractCommerce in some data is, and should be, limited by the law because some data embody values and interests—in particular, human dignity—that may be detrimentally affected by trade. In this Article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: The nature of data and the legal basis for commercially trading such data at a primary or secondary level. Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges, and lawmakers to consider when trade in data is illicit and who, if anyone, shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.
Highlights
Commerce in some data is, and should be, limited by the law because some data embody values and interests—in particular, human dignity—that may be detrimentally affected by trade
In this Article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR
We show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems
Summary
The Roman law protected multiple types of thing (res) by excluding them from commerce (extra commercium). Due to the number of parallels and the reasons given, we will use personal data as a vehicle for our argument, we aspire to make more general claims about limits on trade in data In this regard, Margaret Radin’s work in which she challenges the idea of “paternalism” as a basis for market inalienability is relevant.[28] By criticizing Calabresi and Melamed’s famous view on inalienability,[29] Radin argues that the real justification of trade limitations should not be based on traditional liberalism or economics but on a conception of personhood and human flourishing. Inalienability of personal data could be justified on a moral basis, just like Roman law advanced moral reasons when prohibiting trade in free humans, because the morally-laden values and information that personal data embody would be compromised by sale. Building on the existing literature, we submit that human flourishing is regarded as one such fundamental value that can justify inalienability of personal data
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