Data As Counter-Performance: A New Way Forward or a Step Back for the Fundamental Right of Data Protection?

Abstract

With the proposed Directive on digital content the Commission has tried to give legal re-ality to the fact that individuals "pay" for otherwise "free" services online with their per-sonal data ("data as counter-performance"). The legislative procedure has revealed se-vere doubts on the compatibility of this concept with the GDPR and the fundamental rights nature of data protection. This paper aims for reconciliation by considering the Directive as another means of data protection as a fundamental right, and by arguing for the enhanced practical opportunities using EU consumer law can offer.

Keywords: Digital Content Directive, data as counter-performance, data protection, fundamental rights, European consumer law