Struggling with users’ consent: Economic approach to solve the issue of coupling

Abstract

Although it has always been discussed in jurisprudential literature, the socalled “prohibition of coupling” – making the provision of a service conditional on the user’s consent – has been lurking in the shadows of the former German Federal Data Protection Act. A change is foreseeable with the General Data Protection Regulation (GDPR): Art. 7 para. 4 GDPR clarifies that the provision of services may not be made dependent on the granting of consent. Nevertheless, this apparent novelty of data protection law raises many questions. While representatives of business practice in particular reject the application of the prohibition of coupling in numerous constellations, its apologists are issuing grim warnings of the end of all datadriven services in general. This article proposes a solution that is equally suited to the protection of the privacy of data subjects as well as the economic interests of service providers.