A Consumer Law Perspective on the Commercialization of Data

Abstract

Commercialization of consumers’ personal data in the digital economy poses serious, both conceptual and practical, challenges to the traditional approach of European Union (EU) Consumer Law. This article argues that mass-spread, automated, algorithmic decision-making casts doubt on the foundational paradigm of EU consumer law: consent and autonomy. Moreover, it poses threats of discrimination and undermining of consumer privacy. It is argued that the recent legislative reaction by the EU Commission, in the form of the ‘New Deal for Consumers’, was a step in the right direction, but fell short due to its continued reliance on consent, autonomy and failure to adequately protect consumers from indirect discrimination. It is posited that a focus on creating a contracting landscape where the consumer may be properly informed in material respects is required, which in turn necessitates blending the approaches of competition, consumer protection and data protection laws.