I dati personali come "controprestazione" contrattuale

Abstract

The unceasing evolution of Information and Communication Technologies has led to deep transformations in the social and economic fabric, marked by the Big Data Economy and the Information Society paradigms. On a factual level, personal data have assumed a significant patrimonial connotation, becoming a real economic asset, susceptible to “commodification” and “commercialization”. The offer of goods or services conditional on the provision of personal data – and on the consent to its processing – by the data subject (so-called “tying”) corresponds to an increasingly widespread business model, especially in the online world – in relation to the market of digital contents and services – but also in the analog one. This phenomenon, widely designated in the national and international debate as “data as counter-performance”, has come, under different profiles and on several occasions, to the attention of the European legislator, who intended to ensure, on the one hand, an effective freedom of consent to data processing by the data subject (Article 7, para. 4, GDPR) and, on the other hand, some contractual safeguards to the consumer providing their data (Article 3, para. 1, DCD; Article 3, para. 1a, CRD). This work, starting from an in-depth analysis of the lively debate which accompanied the long and complex legislative procedure that resulted in the adoption of these instruments, aims to investigate about the issues concerning the lawfulness, the nature and the characteristics of the social-economic transactions connoted by the exchange of “goods or services versus data”, in order to identify their proper dogmatic and systematic classification and the specific discipline applicable to them, with the aim of reaching solutions able to ensure a fair balancing of the interests at stake, in compliance and implementation of the axiological framework which informs the legal order. [editing by Author]