In this sixth article of our "Big Data & Issues & Opportunities" series (see our previous article here), we look into the possible use of personal data as counter-performance in the context of supply of digital content and assess whether the EU is gradually opening up to the monetisation of data. Where relevant, illustrations from the transport sector will be provided.
Digital content, in short, means data produced and supplied in a digital form. Forms of digital content may include computer programs, games, music, videos, applications, cloud storage and potentially social media.
Setting the stage
The fact that digital content can be provided "free of charge" is particularly popular with consumers, who have shown a strong appetite for such content. Indeed, only a small minority of consumers pays for digital content on a regular basis. Such "free" models allow companies to reach a large pool of consumers and thereby enable them to quickly test new ideas and innovative services. In this regard, digital companies foster the common perception that such digital content is indeed provided for free, while in reality it requires users to surrender valuable personal data in exchange and provides multiple future monetisation possibilities for companies.
Illustration in the transport sector: In order to navigate the internet and to use "free" Wi-Fi services in airports or on public transport, users need to accept cookies and provide their email address. In essence, if a user wishes to make use of free internet, he or she must disclose to the supplier (who will often further share or sell such content to third parties) his or her email address, location data, history of the websites visited, etc.
Since the Cambridge Analytica data scandal, which came to light in March 2018, the provision of personal data as counter-performance for "free" digital content has gained public visibility. The extent to which personal data can be monetised by companies gives rise to heated debates.
In terms of EU law, whether personal data can be used as an economic asset in the supply of digital content is considered in the context of a 2015 proposal of the European Commission for a Directive on contracts for supply of digital content (the "Proposal"). Through this Proposal, the European Commission seeks to reconcile the EU legal framework on consumer and contract law with the economic reality.
In a nutshell, the Proposal grants the same rights to a consumer (i.e. a data subject) providing personal data to the supplier as to a customer paying money to gain access to digital content. Digital content contract rights and remedies are thus extended to data-driven transactions.
Quantifying personal data
The Proposal clearly states that counter-performance for digital content can be provided in the form of personal data. Yet, is it economically speaking possible to quantify personal data and treat it as a form of payment for digital content? Unlike money, there exists no standardised value for personal data. Data is rather a dynamic product, characterised by fluidity and intangibility.
Attaching value to personal data is however not impossible. Proof of this can be found in the different existing initiatives allowing the monetisation of individuals' personal data. Indeed, there exist several ways to assess the value of personal data. In doing so, one should take into account the expressing value of personal data ("how to express monetary value"), the pricing factors ("which object is priced") as well as the pricing systems ("how to attach value to the object"):
It is therefore possible to quantify the monetary value of personal data. Nevertheless, treating data as counter-performance does present practical and legal challenges, which, if not properly addressed, could amount to a setback for big data.
One can indeed criticise the Proposal for limiting itself to extending the scope of application to digital content supplied against a counter-performance other than money, without addressing the practical implications that this extension entails, especially in relation to the following:
Illustration in the transport sector: In order to comply with the data retrieval obligation, a carpooling service may have to delete reviews users have uploaded. Returning this data would negatively alter the experience of other users of the service by affecting the featuring and star ratings of drivers.
The above mentioned, non-exhaustive, practical concerns demonstrate that further clarifications are required in order to provide greater certainty for suppliers of digital content and the big data value chain in general. The subject calls for the establishment of adequate ex ante guidelines, or similar initiatives to assist the suppliers of digital content.
By qualifying the provision of personal data as a counter-performance, the Proposal intends to codify a social practice. The legal recognition of a common social practice is likely to have legal consequences for both parties to the contract.
Consequently, in addition to practical challenges, several difficulties from a legal perspective can be identified in the Proposal:
Is there a need to monetise data?
Some commentators, such as the European Data Protection Supervisor, have been critical vis-à-vis the introduction of the explicit possibility to use personal data as a counter-performance. They argue that personal data cannot be monetized and the Proposal, covering the field of contract law, is not the adequate instrument to regulate the use of personal data. In particular, protection is already granted by the existing legislation on personal data protection, and in particular the GDPR. Some stakeholders do essentially not see the need to attach legal consequences to a practice which may be observed everywhere in the digital environment.
The recognition of personal data as counter-performance for the first time indicates the desire of the EU legislature to take into account an underlying economic reality of transactions using personal data and to express, once again, its concern regarding the protection of individuals with regard to the processing of their personal data. Such acknowledgment is per se welcome as this concept will increase transparency, raise awareness of the economic value of personal data, and foster the rational behaviour of consumers (the so-called "educational" dimension).
However, as demonstrated through this article, legalising this economic reality generates practical and legal concerns. Accordingly, clarifications and guidelines are necessary to allow a greater degree of predictability for digital market actors and to ensure the usefulness of big data.
Our next article will address the free flow of data, with illustrations drawn from the transport sector.
This series of articles has been made possible by the LeMO Project (www.lemo-h2020.eu), of which Bird & Bird LLP is a partner. The LeMO project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement no. 770038.
The information given in this document concerning technical, legal or professional subject matter is for guidance only and does not constitute legal or professional advice.
The content of this article reflects only the authors’ views. The European Commission and Innovation and Networks Executive Agency (INEA) are not responsible for any use that may be made of the information it contains.
 Commission, 'Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content' COM (2015) 634 final
 Rebecca Kelly and Gerald Swaby, 'Consumer Protection Rights and "Free Digital Content' (2017) 23(7) Computer and Telecommunications Law Review 165, 168
 Gianclaudio Malgieri and Bart Custers, 'Pricing Privacy: the Right to Know the Value of your Personal Data' (2018) 34(2)Computer Law & Security Review 289
 OECD, 'Exploring the Economics of Personal Data: A Survey of Methodologies for Measuring Monetary Value' (OECD Digital Economy Papers, No. 220, OECD Publishing 2013) <https://www.oecd-ilibrary.org/docserver/5k486qtxldmq-en.pdf?expires=1539782608&id=id&accname=guest&checksum=9725A618211DF41C00207963B84C43F0> accessed 17 October 2018
 See OECD, 'Exploring the Economics of Personal Data: A Survey of Methodologies for Measuring Monetary Value' (OECD Digital Economy Papers, No. 220, OECD Publishing 2013) <https://read.oecd-ilibrary.org/science-and-technology/exploring-the-economics-of-personal-data_5k486qtxldmq-en#page1> accessed 22 January 2019
 Deloitte, 'Impact of the European Commission's Draft Directive on Contract Rules for the Supply of Digital Content. Final Report' (Deloitte 2016) <http://edima-eu.org/wp-content/uploads/2017/11/Deloitte-EC-Digital-Content.pdf> accessed 4 February 2018.
 Axel Metzger, 'Data as Counter-Performance: What Rights and Duties do Parties Have?' (2017) 8(1) JIPITEC 2 <http://www.jipitec.eu/issues/jipitec-8-1-2017/4528> accessed 29 January 2019
 European Data Protection Supervisor, 'Opinion 4/2017 on the Proposal for a Directive on Certain Aspects concerning Contracts for the Supply of Digital Content' (EDPS 2017) <https://edps.europa.eu/sites/edp/files/publication/17-03-14_opinion_digital_content_en.pdf> accessed 17 October 2018