EDPS Opinion on Proposal for a Directive on Digital Content

On 14 March 2017, the European Data Protection Supervisor (EDPS) Giovanni Buttarelli published his Opinion on the Commission’s Proposal for a Directive on certain aspects concerning contracts for the supply of digital content. This Opinion was issued at the specific request of the Council.  While the EDPS supports the aim of the Commission’s initiative to enhance consumer rights, the EDPS suggests that the proposed Directive should avoid unintentional interference with the data protection rights and obligations set down in the General Data Protection Regulation. In particular, the EDPS warns against requiring individuals to disclose personal data in ‘payment’ for an online service.

Risk of Confusing Fundamental Right with Commodity

The Commission’s proposal extends consumer protection to digital content supplied to the consumer in exchange for money or data, including personal data. The EDPS highlights the risk of confusion for consumers and business of any new provisions in EU law which appear to treat personal information, whose protection is a fundamental right, as mere commodity. It could interfere with the careful balance negotiated by the EU legislator in the GDPR, for example, on the role of freely-given consent and the right to data portability.

Harmonising Directive and ePrivacy Regulation with GDPR

Applicable across the EU from May 2018, the GDPR already legislates for the use of personal data in the digital economy, including the strict conditions under which the processing of personal data can take place. The EDPS therefore urges the EU to avoid inadvertently interfering with the rules specified in the GDPR and to be covered in the future ePrivacy Regulation, as doing so could create legal uncertainty.

Territorial Scope

Specifically, rather than the notion of data as a counter-performance, he suggests considering the definition of services outlined in the e-commerce Directive or the provision used by the GDPR to define its territorial scope. Either of these definitions might provide inspiration for the protection of the rights of consumers in the exchange of personal data for services. 

(ga)

EDPS, "Opinion 4/2017 on the Proposal for a Directive on certain aspects concerning contracts for the supply of digital Content", 14 March 2017

"EDPS sees opportunities for stronger consumer and data protection", Press Release, 15 March 2017