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
Date Written: July 19, 2010
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: Suggested Citation