Gaps and opportunities: The rudimentary protection for “data-paying consumers” under new EU consumer protection law

Abstract

Recent adjustments to consumer protection law have played a significant role in the strategic steps taken by the EU in attempts to adapt EU law to the digital economy and to the rising importance of data and data markets. The Directive on certain contractual aspects concerning the provision of digital goods and digital services stands out in its unequivocal recognition of business models that rely on data as contractual counter-performance and of the need to protect (also) consumers who “pay” with data instead of money. This article analyses the novel provisions of the Directive and assesses its impact specifically on data-paying consumers within the broader context of recent EU legislation in the area of consumer protection and data protection. The article identifies some gaps in the legislative scheme and possible opportunities for domestic laws and courts to fill these gaps for granting effective protection to such consumers.