How Fragmentation in European Law Undermines Consumer Protection: The Case of Location-Based Services

European Law Review, Vol. 33, pp. 880-897, 2008

18 Pages Posted: 19 Jul 2010

See all articles by Colette Cuijpers

Colette Cuijpers

Tilburg University; Tilburg Institute for Law, Technology, and Society (TILT) ; Tilburg Law School

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: July 19, 2010

Abstract

The EU Consumer Policy Strategy 2007-2013 aims to improve consumer protection regulation, by addressing fragmentation of legislation and ‘striking the right balance between a high level of consumer protection and the competitiveness of enterprises’.

This article investigates the issues of fragmentation of legislation and consumer protection by an in-depth case study: location-based services (LBS). It provides a brief technical overview of systems that generate location data, and outlines the relevant European legal framework for LBS. Depending on the kind of data and circumstances, location data can be personal data and/or telecommunications traffic data.

The European legal regime for these data can be found in three European Directives, on Data Protection, Privacy and Electronic Communications, and Data Retention. The resulting legal framework for LBS is not only very complex, with three Directives that use partly overlapping definitions of personal data, traffic data, and location data, but it also applies unclear definitions and uses open questions. For example, do ‘standby’ location data qualify as traffic data, which LBS systems are ‘publicly available’ electronic communications systems, and do sensor-based (RFID, WiFi) and chip-card-based systems involve electronic communications?

We conclude that with the current fragmented legal regime, legal certainty is virtually absent, both for LBS providers and for LBS subscribers. The rules are difficult to apply in practice, thereby jeopardising consumer protection, and the definitions are susceptible to multiple interpretations, which, together with the margin of appreciation left to Member States, invites considerable variation in national implementations and therefore a lack of harmonisation. Consequently, fragmentation erodes both pillars of European law-making in the area of consumer protection: neither harmonisation nor a high level of protection is achieved. The case of LBS also demonstrates the need to extend the scope of the Review of the Consumer Acquis beyond its current focus on only eight Directives, and to include the Data Protection and E-Privacy Directives in the Review.

Keywords: consumer protection, European law, fragmentation, location-based services (LBS), data protection, electronic communications, location data

JEL Classification: K10, K13, K23, L96

Suggested Citation

Cuijpers, Colette and Koops, Bert-Jaap, How Fragmentation in European Law Undermines Consumer Protection: The Case of Location-Based Services (July 19, 2010). European Law Review, Vol. 33, pp. 880-897, 2008. Available at SSRN: https://ssrn.com/abstract=1645524

Colette Cuijpers

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE
Netherlands

Tilburg Institute for Law, Technology, and Society (TILT)

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Bert-Jaap Koops (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

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