The chapter addresses a recent legal phenomenon in which consent to the processing of personal data, as an alternative to monetary payment, can serve as consideration in contracts for the supply of digital content and/or the provision of digital services. Since the consent of the data subject represents the most frequent legal basis for processing personal data, it is regarded as a key instrument for the commercialization of such data. By granting the consent, an individual secures access to a desired digital product or service, for which (s)he would otherwise have to pay a price. The legal regulation of this specific form of consideration has, since the adoption of the Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, formalized a long-standing practice. As the provision of personal data is provided by the Directive 2019/770 as an alternative to the monetary payment, consent is treated as subject of consideration, and, subsequently, contracts for the supply of digital content are regarded as quid pro quo transactions. In this context, the chapter examines the impact of a consent withdrawal, which under the General Data Protection Regulation is free and unconditional, on such contract. Given that consent may be freely withdrawn, the question arises how this concept of the withdrawal right aligns with the fundamental principle of the binding force of contracts, embodied in the well-known maxim pacta sunt servanda. The chapter further analyses the reasons that justify the mandatory nature of the right to withdraw consent, as well as the rights that should be guaranteed to the other contracting party if it appears that the withdrawal of consent impairs the contractual balance, so that the other party (trader) may no longer be expected to remain bound by such contract.

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The Impact of Withdrawing Consent for the Processing of Personal Data on the Fate of Contract for the Supply of Digital Content and Digital Services

  • Nikolina Miščević,
  • Sloboda Midorović

摘要

The chapter addresses a recent legal phenomenon in which consent to the processing of personal data, as an alternative to monetary payment, can serve as consideration in contracts for the supply of digital content and/or the provision of digital services. Since the consent of the data subject represents the most frequent legal basis for processing personal data, it is regarded as a key instrument for the commercialization of such data. By granting the consent, an individual secures access to a desired digital product or service, for which (s)he would otherwise have to pay a price. The legal regulation of this specific form of consideration has, since the adoption of the Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, formalized a long-standing practice. As the provision of personal data is provided by the Directive 2019/770 as an alternative to the monetary payment, consent is treated as subject of consideration, and, subsequently, contracts for the supply of digital content are regarded as quid pro quo transactions. In this context, the chapter examines the impact of a consent withdrawal, which under the General Data Protection Regulation is free and unconditional, on such contract. Given that consent may be freely withdrawn, the question arises how this concept of the withdrawal right aligns with the fundamental principle of the binding force of contracts, embodied in the well-known maxim pacta sunt servanda. The chapter further analyses the reasons that justify the mandatory nature of the right to withdraw consent, as well as the rights that should be guaranteed to the other contracting party if it appears that the withdrawal of consent impairs the contractual balance, so that the other party (trader) may no longer be expected to remain bound by such contract.