Consent to data processing should not be consideration for a free service, EDPS says

Thanks to for imageOn March 14, 2017, the European Data Protection Supervisor (EDPS) released Opinion 4/2017 on the 2015 Proposal for a Directive (1) on certain aspects concerning contracts for the supply of digital content  (1) on certain aspects concerning contracts for the supply of digital content
and  (2) on certain aspects concerning contracts for the online and other distance sales of goods goods. See legislative proposals.

The two proposals have the common objective to remove obstacles to cross-border ecommerce in the EU.

Opinion 4/2017 actually focuses on the Proposal for a Directive on contracts for supply of digital content to consumers (hereinafter “the Proposal”). The Proposal specifically aims at having a single set of rules covering contracts for the sale and renting of digital content as well as contracts for digital services.

Opinion 4/2017 examines the Proposal’s several potential interactions with the GDPR (Regulation (EU) 2016/679).

First, the reference to the concept of personal data creates a potential interaction between the Proposal and the data protection rules as laid down, among others, in the GDPR. All data to which to the Proposal applies may be considered as “personal data” under the GDPR, which establishes strict conditions under which the processing of personal data can take place. Opinion 4/2017 recommends to avoid inadvertently interfering with the GDPR rules, as doing so could create legal uncertainty.

Second, Opinion 4/2017 highlights how for a digital contract to fall within the scope of the Proposal it must either provide for a price to be paid by the consumer, or – if the service is provided “free of charge” – for the consumer to “actively provide personal data or other data as counter-performance.”

While the proposal seems to see as legitimate the use of data as a counter-performance (i.e. consideration), the GDPR provides otherwise: for example, it established a set of conditions to assess the validity of consent and to determine whether it can be considered as freely-given in the context of digital transactions. “The strict conditions under which a processing can take place are already set down in the GDPR and do not require amendment or addition” under the Proposal.

Opinion 4/2017 stresses that “personal data cannot be compared to a price, or money. Personal information is related to a fundamental right and cannot be considered as a commodity.” The EDPS recommended avoiding the use of the notion of data as counter-performance in the Proposal.

Finally, the Proposal creates some overlapping from some GDPR concepts:  the consumer’s rights to obtain data at the termination of the contract, the supplier’s duty to refrain from using data potentially overlap with the access rights and, the portability and with the supplier’s duties to refrain from using the data as established by the GDPR.  This is another aspect that shall be aligned in order to avoid confusion regarding the applicable regime.


Opinion 4/2017 is available at…               Open PDF

Related press release is available at…       Open PDF


For more information on requirements for processing data in Europe, contact Francesca Giannoni-Crystal, Federica Romanelli.


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