Pre-Formulated Declarations of Data Subject Consent – Citizen-Consumer Empowerment and the Alignment of Data, Consumer and Competition Law Protections

Abstract

The purpose of this article is to examine the alignment of the respective data protection and privacy, consumer protection and competition law policy agendas through the lens of pre-formulated declarations of consent whereby data subjects agree to the processing of their personal data by accepting standard terms. The article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive and the proposed Digital Content Directive in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when ‘a clear imbalance’ in controller-data subject relations may occur in the context of the requirement for consent to be ‘freely given’ as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR stating that pre-formulated declarations of consent should not contain unfair terms. Attention is paid to various interpretative difficulties stemming from this alignment between the two instruments. In essence, this debate circles the thorny issue of the economic value of personal data and thus tries to navigate the interpretation minefield left behind by the cross-reference.

Keywords: Consent, personal data, unfair terms, market dominance