Paris, 21 November 2017 — This morning, the European Parliament has adopted its position on a new Directive regulating ‘contracts for the supply of digital content’. It has enacted a fundamental principle, already drawn few weeks ago in the ePrivacy Regulation: “personal data cannot be compared to a price, and therefore cannot be considered as a commodity’.
On 26 October 2017, the European Parliament has adopted its position on the ePrivacy Regulation, specifying that ‘no user shall be denied access to any […] service […] on grounds that he or she has not given his or her consent […] to the processing of personal information […] that is not necessary for the provision of that service’ (see art. 8, paragraph 1a, of the LIBE report).
This provision directly echoed the General Data Protection Regulation (GDPR) adopted last year, which specifies (in article 7 and recital 43) that ‘consent is presumed not to be freely given […] if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance’.
Today, the European Parliament has gone even further by stating explicitly that ‘personal data cannot be compared to a price, and therefore cannot be considered as a commodity’ (recital 13 of the report adopted today). We can only regret that the Parliament lacked the courage to draw all legal consequences from this statement and to clearly ban “services in exchange for personal data” kind of contracts. It refuses to explicitly ‘decide on whether such contracts should be allowed or not and leaves to national law the question of validity of [those] contracts’. But it also specifies that its position ‘should, in no way, give the impression that it legitimises or encourages a practice based on monetisation of personal data’ (see recital 13).
The text adopted today (just as the one adopted last month on ePrivacy) will still have to be discussed by Member States, which may weaken entirely those new specifications.
However, today, the Parliament made another clear step toward recognition of a fundamental principle, which La Quadrature du Net have been fighting for for years: personal data protection and privacy, as any other fundamental right, cannot be traded.