Personal Data in Competition, Consumer Protection and Intellectual Property Law: Towards a Holistic Approach?

569 Pages·2018·7.43 MB·English

by  Mor Bakhoum

MPI Studies on Intellectual Property and Competition Law 28
Mor Bakhoum · Beatriz Conde Gallego 
Mark-Oliver Mackenrodt 
Gintarė Surblytė-Namavičienė Editors
Personal Data
in Competition,
Consumer Protection
and Intellectual
Property Law
Towards a Holistic Approach?
Max Planck Institute for
Innovation and Competition
More information about this series at
http://www.springer.com/series/7760
MPI Studies on Intellectual Property
and Competition Law
Volume 28
Edited by
Josef Drexl
Reto M. Hilty
Joseph Straus
Mor Bakhoum • Beatriz Conde Gallego •
Mark-Oliver Mackenrodt •
Gintarė Surblytė-Namavičienė
Editors
Personal Data
in Competition,
Consumer Protection
and Intellectual
Property Law
Towards a Holistic Approach?
Editors
Mor Bakhoum Beatriz Conde Gallego
Max Planck Institute for Innovation and Max Planck Institute for Innovation and
Competition Competition
Munich, Germany Munich, Germany
Mark-Oliver Mackenrodt Gintarė Surblytė-Namavičienė
Max Planck Institute for Innovation and Faculty of Law
Competition Vilnius University
Munich, Germany Vilnius, Lithuania
ISSN 2191-5822 ISSN 2191-5830 (electronic)
MPI Studies on Intellectual Property and Competition Law
ISBN 978-3-662-57645-8 ISBN 978-3-662-57646-5 (eBook)
https://doi.org/10.1007/978-3-662-57646-5
Library of Congress Control Number: 2018955625
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Contents
Introducing a Holistic Approach to Personal Data . . . . . . . . . . . . . . . . . . . 1
Mor Bakhoum, Beatriz Conde Gallego, Mark-Oliver Mackenrodt,
and Gintarė Surblytė-Namavičienė
Part I F undamentals of Personal Data: Between Personal Property
Rights and Regulation
The Golden Age of Personal Data: How to Regulate an Enabling
Fundamental Right? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Manon Oostveen and Kristina Irion
From Personality to Property? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Andreas Sattler
The Failure of Control Rights in the Big Data Era: Does a Holistic
Approach Offer a Solution? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Helena Ursic
The Ambivalence of Algorithms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Philipp Hacker
Part II P ersonal Data and Competition Law
Blurring Boundaries of Consumer Welfare . . . . . . . . . . . . . . . . . . . . . . . . . 121
Inge Graef
The Rise of Big Data and the Loss of Privacy . . . . . . . . . . . . . . . . . . . . . . . 153
Anca D. Chirita
Big Data, Open Data, Privacy Regulations, Intellectual Property
and Competition Law in an Internet-of-Things World: The Issue of
Accessing Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Björn Lundqvist
v
vi Contents
A Competition-Law-Oriented Look at the Application of Data
Protection and IP Law to the Internet of Things: Towards a Wider
‘Holistic Approach’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Jacopo Ciani
Part III Personal Data, Civil Law and Consumer Protection
Proprietary Rights in Digital Data? Normative Perspectives and
Principles of Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Lennart Chrobak
Personal Data After the Death of the Data Subject—Exploring Possible
Features of a Holistic Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Mark-Oliver Mackenrodt
The General Data Protection Regulation and Civil Liability . . . . . . . . . . . 303
Emmanuela Truli
Protecting Children Online: Combining the Rationale and Rules of
Personal Data Protection Law and Consumer Protection Law . . . . . . . . . 331
Milda Mačėnaitė
Personal-Data and Consumer Protection: What Do They Have in
Common? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Matilde Ratti
Part IV P ersonal Data, IP, Unfair Competition and Regulation
The Right to Data Portability and Cloud Computing Consumer Laws . . . 397
Davide Mula
The Interface Between Data Protection and IP Law: The Case of Trade
Secrets and the Database sui generis Right in Marketing Operations,
and the Ownership of Raw Data in Big Data Analysis . . . . . . . . . . . . . . . . 411
Francesco Banterle
Data as Digital Assets. The Case of Targeted Advertising . . . . . . . . . . . . . . 445
Guido Noto La Diega
Binding Corporate Rules As a New Concept for Data Protection in Data
Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Bianka Maksó
The Power Paradigm in Private Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
Heiko Richter
Introducing a Holistic Approach
to Personal Data
Mor Bakhoum, Beatriz Conde Gallego, Mark-Oliver Mackenrodt,
and Gintarė Surblytė-Namavičienė
Personal data and their use constitute a fundamental building block of the digital
economy. An increasing number of business models rely on personal data as a key
input. In exchange for sharing their data, users benefit from personalized and inno-
vative services. At the same time, firms’ collection, processing and use of personal
data pose questions about privacy and fundamental rights. Moreover, given the great
commercial and strategic value of personal data, their accumulation, control and use
may raise competition concerns and negatively affect consumers. It is, thus, a chal-
lenging task to develop a legal framework that ensures an adequate level of protec-
tion of personal data while at the same time providing an open and level playing
field for businesses to develop innovative data-based services.
Beyond being subject to the application of the data protection rules, the handling of
personal data can be affected and, thereby, be directly and indirectly regulated by dif-
ferent fields of law like competition law, unfair competition law, consumer protection
Dr. Mor Bakhoum, LL.M. (Chicago-Kent), LL.M. (Lausanne), is an Affiliated Research Fellow,
Max Planck Institute for Innovation and Competition, Munich.
Dr. Beatriz Conde Gallego, LL.M. (Würzburg), is a Senior Researcher, Max Planck Institute for
Innovation and Competition, Munich.
Dr. Dr. Mark-Oliver Mackenrodt, LL.M. (NYU), Attorney at Law (New York), is a Senior
Researcher at the Max Planck Institute for Innovation and Competition, Munich.
Dr. Gintarė Surblytė-Namavičienė, LL.M. (München), Lecturer, Vilnius University, Faculty of
Law, Lithuania. She was a Senior Research Fellow at the Max Planck Institute for Innovation and
Competition in Munich from June 2011 till June 2017.
M. Bakhoum · B. C. Gallego · M.-O. Mackenrodt (*)
Max Planck Institute for Innovation and Competition, Munich, Germany
e-mail: [email protected]
G. Surblytė-Namavičienė
Faculty of Law, Vilnius University, Vilnius, Lithuania
© Springer-Verlag GmbH Germany, part of Springer Nature 2018 1
M. Bakhoum et al. (eds.), Personal Data in Competition, Consumer Protection
and Intellectual Property Law, MPI Studies on Intellectual Property and
Competition Law 28, https://doi.org/10.1007/978-3-662-57646-5_1
2 M. Bakhoum et al.
law and IP law. To what degree and why are different fields of law particularly blind
or sensitive to personal data? Are there conflicts between the objectives of the dif-
ferent legal areas and data protection? How can the specific approach of one area of
law to personal data inspire or complement other fields of law? How can a holistic
legal approach to personal data be developed? Under the guidance of these over-
arching questions, the contributions of this book examine the significance and legal
treatment of personal data in different areas of law, seeking to identify shortcomings
and common principles and exploring ways to develop an integrated legal approach
to personal data.
Starting with the fundamentals of personal data, Manon Oostveen and Kristina
Irion (University of Amsterdam) highlight the constitutional dimension of the pro-
tection of personal data and the character of the data protection right as an enabling
right for other fundamental rights such as the right to privacy. Approached as an
enabling right, EU data protection law protects against short- and long-term effects
of the kinds of processing of personal data that are prevalent today. The constitu-
tional underpinnings of the protection of personal data should be perceived as going
beyond what is expressly codified in the European General Data Protection
Regulation (EU GDPR). In this regard, the authors argue that alternative legal
approaches for the protection of individual rights and freedoms should be explored.
Helena Ursic (Leiden University) shows how the EU GDPR already reflects con-
cepts from other legal fields such as the data subjects’ rights to data portability, the
right to be forgotten and the right to information. This approach of the EU GDPR
shows the potential to build at the EU level a holistic approach in relation to the
protection of personal data which takes into account the required balance between
data subjects’ rights and the need to build a data-driven economy. In complement to
the idea of a more integrated regulatory approach, Andreas Sattler (Ludwig
Maximilians University, Munich) argues for an empowerment of data subjects by
introducing “a right to one’s data”. This would result in a right of dual character as
it would be property-like while integrating strong aspects of a personality right.
Philipp Hacker (European University Institute, Florence) discusses the legitimacy
and pitfalls of a regulatory approach where the legislature analyses the individual
citizen’s behaviour by using algorithms in order to create a personalized law. While
personalized law may mitigate “digital market failures” resulting from the use of
behavioural algorithms, it also raises legitimacy issues.
Focusing on competition law and personal data, Inge Graef (KU Leuven) stresses
the complementarity of competition, consumer protection and data protection in as
far as these fields of law promote different aspects of consumer welfare. In line with
the investigation of the German Bundeskartellamt in its Facebook case she favours
the use of data protection and consumer law principles as benchmarks for analysing
whether an abuse of dominance under competition rules exists. Anca Chirita
(Durham University) provides a detailed examination of the privacy policies of
some of the most relevant online platforms and argues in favour of a competition
law intervention to tackle price discrimination based on data misuse as a particular
form of abuse of dominance. Moreover, while still immersed in the effort to create
a coherent legal framework for the digital economy, policy makers and enforcers are
Introducing a Holistic Approach to Personal Data 3
facing new challenges arising from rapid and novel technological developments.
With the advance of the Internet of Things (IoT), sensor-enabled devices increas-
ingly collect data—many of them personal—about their environment. Privacy con-
cerns that are already present today will be amplified in the IoT scenario of the
future, which will test the adequacy of the traditional “notice and consent” data
protection model. Likewise, new data-related IoT business models are deeply
changing the dynamics of competition. Jacopo Ciani (University of Milan) and
Björn Lundqvist (Copenhagen Business School) in their contributions elaborate on
the manifold and complex legal issues raised by the emerging IoT.
Lennart Chrobak (University of Zurich) opens his study by classifying data and
information and by discussing data as an economic input factor and as a legal input
factor. He then analyses how personal data are approached by the existing civil law
rules and finds substantial differences between the different fields of civil law. For
example, the applicability of property law to personal data is determined to be very
limited due to the quite strict interpretation of the fundamental property law prin-
ciples of numerus clausus, specificity and publicity. By contrast, he finds the law of
obligations widely applicable to personal data cases, as many imbalances between
the rights and the duties of the contracting parties can be found. In conclusion,
Chrobak points to recent legal and technological approaches which seek to diminish
deficiencies in the treatment of data as a new kind of legal object. Mark-Oliver
Mackenrodt (Max Planck Institute for Innovation and Competition, Munich) exam-
ines the legal treatment of personal data after the death of the data subject by differ-
ent fields of law, including inheritance law, contract law, intellectual property law,
privacy law, the right to personality and telecommunications law, in order to explore
and identify possible features of a holistic approach to personal data. Emmanuela
Truli (Athens University for Economics and Business) examines the conditions
under which a plaintiff who has suffered harm from a breach of the data protection
rules can sue for private law damages according to the new EU GDPR. In compari-
son with the old Data Protection Directive, she finds that the GDPR entails an
expansion of the rights of the plaintiff and seeks to address divergences between the
pre-existing rules in the Member States, in particular with regard to moral damage,
data processor liability, joint liability and representation rights of associations.
Milda Mačėnaitė (Tilburg University) focusses on the child-specific rules of the EU
GDPR and compares these newly created norms with the existing legal rules for the
protection of minors in EU consumer law. She identifies the well-established con-
cepts, justifications and instruments for the protection of minors in EU consumer
law and points to possible lessons for the interpretation of the rules in the
GDPR. Matilde Ratti (University of Bologna) identifies common features of the
regulatory techniques used in data protection and in consumer protection law. Both
fields of law seek to protect the weaker subject: they attribute specific rights like the
right to withdrawal to the weaker subject and create litigation rules in their favour.
However, it should be taken into account that the consumer protection rules aim to
balance the contractual interests of the parties while the data protection rules seek
to protect a fundamental right.