Commerce in Data and the Dynamically Limited Alienability Rule

(2020) 21(5) German Law Journal 924-943

20 Pages Posted: 14 Oct 2019 Last revised: 3 Sep 2020

See all articles by Václav Janeček

Václav Janeček

University of Oxford - Faculty of Law

Gianclaudio Malgieri

EDHEC Business School - Augmented Law Institute; Vrije Universiteit Brussel (VUB) - Faculty of Law

Date Written: October 8, 2019

Abstract

Commerce in some data is, and should be, limited by the law because some data embody values and interests (in particular, human dignity) that may be detrimentally affected by trade. In this article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: the nature of data and the legal basis for commercially trading such data (at primary or secondary level). Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges and law-makers in considering when trade in data is illicit and who (if anyone) shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.

Keywords: alienability, contract law, data, data commerce, digital assets, Digital Single Market, GDPR, inalienability, ownership, personal data, res extra commercium, sensitive data, trade

JEL Classification: K11, K12, K13, K19, K29

Suggested Citation

Janeček, Václav and Malgieri, Gianclaudio, Commerce in Data and the Dynamically Limited Alienability Rule (October 8, 2019). (2020) 21(5) German Law Journal 924-943, Available at SSRN: https://ssrn.com/abstract=3466089

Václav Janeček (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/vaclav-janecek

Gianclaudio Malgieri

EDHEC Business School - Augmented Law Institute ( email )

58 rue du Port
Lille, 59046
France

HOME PAGE: http://https://www.gianclaudiomalgieri.eu/

Vrije Universiteit Brussel (VUB) - Faculty of Law ( email )

Brussels
Belgium

HOME PAGE: http://www.vub.ac.be/LSTS/members/malgieri/

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