ABSTRACT
A central idea in the GDPR is that consent for data processing must be ‘freely given’. This has been consistently understood by academics and data protection institutions to mean that a refusal of consent must be costless: that individuals must be able to refuse data processing and still enjoy free and full access to online services, without suffering any detriment.
This idea is incoherent. It deprives individuals of the value of their data, as they are prevented from exchanging it for valuable services. On the contrary, respecting the fact that data has value, and that this value properly falls under the control of the data subject, entails that they should have the power to choose whom to share it with, and whether or not to bargain with it. They must be able to gain benefits from their data, which means in turn that if they do not provide data, their service providers must surely be able to withhold some of this benefits. As well as this, recognising that data is payment recognises the contractual nature of data processing in return for services, and so gives individuals fuller consumer law and contract law protection.
The nature and terms of such contracts surely need policing by law, as is the case of all contracts with utilities, but they are an essential part of the internet and of empowerment of data subjects. It is fortunate that the Court has now recognised this in Meta, where it advocated consumer choice between payment with data or with money. It is now time for the data protection world to catch up with the law and the reality of online exchanges.
Davies, Gareth T, Data and Money as Alternative Payment Methods for Online Services: Applying a Reasonable Alternative Idea of GDPR Consent (April 18, 2024), VU University Amsterdam Legal Studies Paper Series Forthcoming.
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