Data as Counter-Performance: Yet Another Point Where Digital Content Contracts and the GDPR Conflict

Abstract

This study critically analyzes the notion of counter-performance that has been proposed in the European Commission’s proposal of 9 December 2015 for a Directive on certain aspects concerning contracts for the supply of digital content (DCD) (COM(2015) 634 final). In this research, there have been made certain comparisons amongst other EU law materials to reveal how the DCD relates to those, primarily to the General Data Protection Regulation (GDPR)(2016/679). The analysis has mainly been made from a contractual point of view. The aim of this paper is to evaluate whether the notion of counter-performance is in line with the GDPR and general rules of contract law. The briefing paper is structured as follows: Part 1 will give a background of the GDPR and DCD, including the definition of personal data and payment. Part 2 will focus on contractual relationship between the DCD and other EU law materials in terms of data. In this part, the active and passive provision of data and the notion of free-services will be analyzed and the problem of data as a tradable commodity will be scrutinized. Part 3 will address the DCD’s notion of counter-performance in terms of consent, conformity, remedies, and termination. Finally, the last part will conclude. In the evaluation of the rules, where relevant, there will be certain national laws comparisons made, in particular, from a traditional contract law perspective.