Access to and Porting of Data under Contract Law: Consumer Protection Rules and Market-Based Principles

Abstract

The paper explores whether a party under a contract is obliged to grant the other party access to data it has collected in the course of the contract. The paper is based on an analysis of European and German law and provides the basic insights from law and economics of contract law. Whether a contracting party has a right to access and port data depends on whether the party is a consumer or a business user. Article 16(4) of Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and services provides such a right for consumers. For B2B contracts,the paper pleads for a cautious approach based on majoritarian default rules.

JEL Classification: K12