Abstract
Abstract This paper explores the relation between the European rules on data protection and the commercialization of data. After contextualising the ongoing data revolution, it is argued that the practice of commercializing data may raise problematic issues under data protection law in two fundamental respects. First, it is often unclear whether data protection law should apply to begin with (‘the “if” problem’). Secondly, when and if data protection law applies, it is frequently hard to determine how it should apply (‘the “how” problem’). As we will observe, both the irreducibly dynamic nature of data and the conceptual blurriness of our legal discourse risk setting data protection law and trade in data on a baleful collision course.
Highlights
The World is in the middle of a data revolution: it is no overstatement to say so
This paper explores the relation between the European rules on data protection and the commercialization of data
The data protection regime in both the European Union (EU) and the European Economic Area (EEA) is enshrined in the now-infamous General Data Protection Regulation, which was adopted on the 14 April 2016 and came into force on the 25 May 2018.37 The GDPR lays out a legal framework for processing personal data within the EU and the EEA
Summary
Data are driving key shifts in our cultural, socio-economic, and political practices, creeping into classrooms and boardrooms alike.[1] In B2C transactions, digital content and digital services are often paid for with personal data, with the latter being increasingly seen as a ‘tradable assets’ and accepted as counter-performance.[2] We cannot practically escape this revolution nor gloss it over in our theorising: the only promising way forward is to try and understand it. Some have been exuberant enough to hail data as the new ‘oil’ of the economy;[3] many have toiled away at graphs and statistical models to try and predict the future growth of our data environment;[4] and most agree that data are an increasingly valuable asset in today’s world.[5]. Staudenmayer, ‘Data as Counter-Performance – Contract Law 2.0? Staudenmayer (eds), Data as Counter-Performance – Contract Law 2.0? For an insightful overview of the ‘data as counter-performance’ debate, see Lohsse, Schulze and Staudenmayer (eds), this n above. Before delving deeper into commercialization of data, let us step back and revise the fundamentals
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