Pay with data! How con­su­mers will be pro­tec­ted in the future.

Con­su­mers are often unawa­re that they may very well be paying some­thing in return for ser­vices adver­ti­sed as “free” by cer­tain pro­vi­ders: Alt­hough the con­su­mer does not pay a fee in the tra­di­tio­nal sen­se for the provider’s ser­vice, ins­tead he or she vol­un­ta­ri­ly trans­mits per­so­nal data to the pro­vi­der, e.g. by par­ti­ci­pa­ting in a cus­to­mer card sys­tem in order to recei­ve dis­count codes. The­se per­so­nal data are pro­ces­sed by the pro­vi­der and resold, for examp­le, for per­so­na­li­sed adver­ti­se­ments. The pro­vi­ders of “free” ser­vices make con­si­derable finan­cial pro­fits this way.

On this occa­si­on, and in order to streng­t­hen the rights of con­su­mers, legis­la­tors have legal­ly regu­la­ted “pay­ment with data” as part of the imple­men­ta­ti­on of the Euro­pean Direc­ti­ve on cer­tain aspects con­cer­ning con­tracts for the sup­ply of digi­tal con­tent and digi­tal ser­vices (DIDRL) (PDF only in Ger­man). As of 1 Janu­a­ry 2022, as soon as the pro­vi­der requests per­so­nal data in excess of the requi­red level for its ser­vice to the con­su­mer, a con­tract is con­clu­ded bet­ween pro­vi­ders and con­su­mers for con­si­de­ra­ti­on. It should be irrele­vant whe­ther con­su­mers con­scious­ly and actively pro­vi­de the data or only allow the pro­vi­der to collect the data.

Pri­or to the con­clu­si­on of this con­tract, con­su­mers will be infor­med in the future about the use of the trans­mit­ted data in that the pro­vi­der of the ser­vice must exp­lain that and to what extent per­so­nal data are to be collec­ted as con­si­de­ra­ti­on for the respec­ti­ve ser­vice. Via the revi­sed § 312 of the Civil Code and the new­ly inser­ted § 327 the­re­of, the app­li­ca­bi­li­ty of  the pro­vi­si­ons on digi­tal pro­ducts  and the con­su­mer pro­tec­tion pro­vi­si­ons is exten­ded to con­tracts through which the con­su­mer pro­vi­des per­so­nal data. This means that the con­su­mer has a revo­ca­ti­on right and can the­re­fo­re chan­ge his or her mind and with­draw from the con­tract after it has been con­clu­ded.

To pro­tect pro­vi­ders, a right of ter­mi­na­ti­on has been sti­pu­la­ted in the event con­su­mers revo­ke their con­sent in data pro­tec­tion law or object to the pro­ces­sing of their data. This is becau­se the pro­vi­der should also not be obli­ged to offer its ser­vice free of charge.

Prac­ti­cal notes

The ques­ti­on of what legal impli­ca­ti­ons ari­se from an exchan­ge of ser­vices in return for per­so­nal data and how con­su­mers will be pro­tec­ted in such cases in the future has now been defi­ni­tively cla­ri­fied by law­ma­kers. In addi­ti­on, it is to be expec­ted that “free” offers of ser­vices as of 1 Janu­a­ry 2022, if they are not com­ple­te­ly eli­mi­na­ted, will in any case only be avail­ab­le to a great­ly redu­ced extent, so that the legis­la­ti­ve objec­ti­ves can be expec­ted to be achie­ved.
Ser­vice pro­vi­ders are requi­red to make their ser­vice offe­rings more trans­pa­rent and to inform con­su­mers about the use of their per­so­nal data and about their revo­ca­ti­on right.

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