Fairness in the exchange of "data for services" in the data protection regulation of the EU

• Applicants: Professor Dr. Benedikt Buchner; Professor Dr. Jürgen Kühling
• Subject Area: Public Law ; Private Law
• Term: since 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 463332313

The judicial and executive evaluation of fairness in the exchange of "data for services", like its accompaniment in legal dogmatics, is only just beginning to emerge. In essence, the question of whether the exchange is really fair, i.e. whether an appropriate service for the (apparently) legit-imate processing of data is provided by the service provider, is particularly important in the case of the large number of Internet-based services which seem to be offered "free of charge" but in reality demand data as remuneration. This question is legally relevant both with regard to the necessity, appropriateness and fairness tests within the framework of data protection law and with regard to the effectiveness of a consent and in particular if it is given freely. It is also ques-tionable to what extent the commercial conditions can be reconciled with the fundamental princi-ple of (informational) self-determination of the persons concerned as consumers. The research project essentially pursues three objectives:- The comprehensive conceptual and dogmatic analysis of commercial fairness in data pro-cessing in the light of the Competition law and, above all, the data protection legal framework, integrating the findings of US jurisprudence into the European discourse.- The appropriate classification of the relevant business models for the legal assessment as well as the analysis of the commercial conditions.- Against this background, solutions will then be developed for German data protection law and, above all, for EU data protection law, which do justice to the legal models on the one hand and to the economic conditions of the internet economy on the other hand and provide a basis for the further development of law at the interface of data protection and competition law.The questions raised require different methodological approaches. On the one hand, it is a mat-ter of a classical normative analysis, and on the other hand of a somewhat modified theoretical analysis of the US-American scientific literature. The background to this two-fold approach is - very simply and pointedly - the working hypothesis that in EU data protection law (in addition to the relevant scientific literature) above all the normative foundations and in the US American legal system above all the rich scientific literature and the conceptual approaches to solutions available there to ensure the fairness of commercialisation in the data economy can be made fruitful. A third methodological focus is an analysis of the business models "performance against data", which enables a well-founded critical comparison with the normative research results.

• DFG Programme: Research Grants