Personal Data and Consumer Insurance: A Freedom to Share or Duty to Disclose?

Posted: 21 Feb 2022

See all articles by Freyja van den Boom

Freyja van den Boom

Bournemouth University - Centre for Intellectual Property Policy & Management (CIPPM); Notre Dame Tech Ethics Lab

Date Written: December 2019

Abstract

Can The right to Data Portability under the doctrine of Utmost Good Faith turn into a Duty to Disclose personal information?

With Telematics, vehicle data is collected through a device installed in the driver’s car that records data when the vehicle is being driven. As vehicle data reveals information about driving habits and driving style, which was previously unavailable or expensive to collect, insurers who can access vehicle data in addition to traditional means of data collection are expected to make better risk assessments and provide more fine-tuned premiums. However, given the concerns about direct vehicle access being reduced by vehicle manufacturers, alternative ways to gain access to vehicle data need to be considered. One way is to collect vehicle data directly from the applicant.

Under English law the Duty of Utmost Good Faith poses a duty on the insured to disclose material facts to the insurer. With respect to consumer insurance contracts, it puts a duty on the applicant to take reasonable care not to misrepresent information. When specifically asked, applicants should provide the insurer with their vehicle data but what if they do not yet have access to that data? In general, vehicle data will fall under the scope of what is considered personal data under the General Data Protection Regulation (hereinafter the GDPR). The GDPR introduces in Article 20 the right for individuals to receive and transmit a subset of personal data to another controller. Besides empowering individuals by giving them more control, the portability of personal data is also said to help improve competition on the market by reducing lock-in effects since consumers can share their data between service providers making it easier to switch.

Contributing to the discussion on the interpretation and use of the right to data portability this paper looks specifically at the role for Article 20 of the General Data Protection Directive to help insurers gain access to personal data they would otherwise not have access to. As proposed in this paper there is potential for data portability to play a role in providing for access to vehicle data, however until the ECJ decides upon the interpretation of key elements of article 20 it remains uncertain to what extent

Keywords: Motor vehicle insurance, The General Data Protection Regulation, Telematics, Personal data, Article 20 the right to Dataportability, Utmost Good Faith

Suggested Citation

van den Boom, Freyja, Personal Data and Consumer Insurance: A Freedom to Share or Duty to Disclose? (December 2019). Available at SSRN: https://ssrn.com/abstract=3991843

Freyja Van den Boom (Contact Author)

Bournemouth University - Centre for Intellectual Property Policy & Management (CIPPM) ( email )

89 Holdenhurst Road
Bournemouth
Dorset, BH8 8EB
United Kingdom

Notre Dame Tech Ethics Lab ( email )

Department of Mathematics
Notre Dame, IN 46556
United States

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