Data contracts deal with the provision or processing of data. As there is not a balanced distribution of power in the data market, players who hold vast amounts of data and whose volume of data keeps increasing exponentially, have a very strong bargaining power in data contracts. Just like in the Industrial Revolution, we are witnessing a change in powerful players in a newly emerging market (i.e. the data market) and those that were not fast enough to accumulate power in this market have no other choice than submitting to the requests of powerful players. Contractual justice has been widely accepted in the context of consumer contracts. Statutory limitations aiming for contractual justice regarding B2B contracts also exist in some jurisdictions. In the data economy, enterprises that are not powerful in the market can be as vulnerable as consumers are in other contexts. For this reason, protections against unfair terms, which is a result of contractual justice, was introduced for B2B data contracts in the EU’s Data Act. This chapter argues that if implementation of unfair contract terms protections in B2B data contracts is accepted as a necessity, it will only make sense to implement it on a global level.

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The Need for Emphasis on “Fair Terms” in Data Contracts on a Global Level

  • Zeynep Ülkü Kahveci

摘要

Data contracts deal with the provision or processing of data. As there is not a balanced distribution of power in the data market, players who hold vast amounts of data and whose volume of data keeps increasing exponentially, have a very strong bargaining power in data contracts. Just like in the Industrial Revolution, we are witnessing a change in powerful players in a newly emerging market (i.e. the data market) and those that were not fast enough to accumulate power in this market have no other choice than submitting to the requests of powerful players. Contractual justice has been widely accepted in the context of consumer contracts. Statutory limitations aiming for contractual justice regarding B2B contracts also exist in some jurisdictions. In the data economy, enterprises that are not powerful in the market can be as vulnerable as consumers are in other contexts. For this reason, protections against unfair terms, which is a result of contractual justice, was introduced for B2B data contracts in the EU’s Data Act. This chapter argues that if implementation of unfair contract terms protections in B2B data contracts is accepted as a necessity, it will only make sense to implement it on a global level.