Should I pay or should I not?

by Barbara Schmitz //

The economic significance of data-driven business models is obvious. The European Data Strategy estimates that the data economy will be worth EUR 829 billion in 2025. This would mean that the value would have almost tripled since 2018. The setting of cookies and other similar technologies, as well as the discussion about the (advertising) funding, is a good example of this new data economy. Through the processing of personal data enabled by cookies, for example, advertising can be personalized. As a result, money is made with cookies and data can be monetized.

Earning money is not in itself wrong – but a moral conflict arises when the data is relevant to personal rights. In this context, the question arises whether data with personality relevance can be considered as economic goods.

In practice, consumers are quite liberal in the way they disclose their personal data, while at the same time there is an increasing sensitivity to personal rights. This so-called “privacy paradox“. expresses well the seemingly irresolvable contradiction of most users between convenience and privacy.

The possibility created by the Digital Content Directive (DID -RL) of introducing personal data into commercial transactions in a self-determined manner bridges the gap between private autonomy and data protection.

It is interesting to note that it was important to the legislator to future-proof the scope of application. The legal definition of “digital products” in section 327 (1) of the German Civil Code (BGB) takes account of the EU Directive’s technology-neutral and development-open approach (see recital 19 of DID-RL). This ensures that technologies that are currently not thought of or are under development (will) also fall within the scope of application. Therefore, it is not possible to circumvent the legal purpose of protection through technology changes or adaptations.

These digital products can either be paid for with money (“price” in § 327 (1) of the German Civil Code) or with personal data (Section 327 (3) of the German Civil Code). Payment with data takes the form of providing or being obliged to provide the data.

The compatibility of the interests of the data subject with the economic data traffic is made possible by the regulations of the GDPR with Art. 1 Para. 3 GDPR and recital 4 Sentence 2 GDPR. Thereafter, the free movement of data may neither be restricted nor prohibited and “The right to protection of personal data is not an unrestricted right; it [must] be seen in light of its social function.”

It should be noted that in the payments with data models, the data is provided as remuneration not only for the fulfillment of the contract, but also for other purposes, such as marketing purposes. Providing the personal data for more than contract fulfillment is an important element of the pay with data construct. If this part of the package is missing, §§ BGB § 312 ff. of the German Civil Code do not apply.

In the future, it will thus be possible to decide whether to use a service by making one’s own data available or by paying a (usage) fee while fundamentally excluding the marketing of one’s own data. Instead of viewing consent and contractual coupling as roadblocks on the way to contractual arrangements, there is now an opportunity to anchor data protection law in contractual freedom and hence to create a data obligation law based on private autonomy.

One point that should also be noted in this context is that there are likely to be implications for tax law because of the equation of monetary benefits and personal data.

Apart from the fact that the terminology of “consideration” will be difficult to avoid, since the basis of assessment under tax law is based on a compensation (whether paid or not), there is the challenge of evaluating and quantifying the data and information provided.

In the interest of all parties involved, it is to be hoped that the open questions and possible collisions of interests do not get lost in destructive conflict discussions, but rather produce constructive solutions that take all aspects into account. Quite in the spirit of Blaise Pascal (1623-1662), the founder of theory of probability: It is a pleasure to be in a storm-tossed ship when you are sure it will not sink.

The following digital products can be the scope of a consumer contract according to recitals 19, 20 and 26 of the DID-RL (see Grüneberg, in: Grüneberg, Kommentar zum BGB, 81. Aufl. 2022, § 327 Rz. 3ff):

  • Digital content § 327 Abs. 2 Satz 1 BGB
  • Computer program
  • Applications
  • Video, audio, music files
  • digital games
  • electronic books and other electronic
  • publications
  • Digital services § 327 Abs. 2 Satz 2 BGB
  • Software-as-a-Service
  • Hosting, Cloud-Computing
  • Shared games, cloud-based word processing Computing
  • social networks
  • portals and platforms
  • Customer specification § 327 Abs. 4 BGB
  • Customized software
  • 3D printing of goods
  • Physical data mediums § 327 Abs. 5 BGB
  • DVDs, CDs, USB sticks and memory card (not blank CDs)

Barbara Schmitz, München