Personal data as counter-performance in consumer contracts — the necessity for the performance of a contract as a basis to ensure a lawful personal data processing

Rui Filipe Gordete Almeida

Keywords

Personal data; counter-performance; consumer; defect; digital content; digital services.
 

Abstract

A significant number of business models operating in the digital economy entail the provision of personal data (and not any pecuniary asset) in exchange for the provision of digital content and services. These provisions, which the average consumer perceives as being “free of charge”, have recently been recognized and framed in consumer protection law: on the one hand, in Directive 2019/770, transposed by Decree-Law no. 84/2021 of 18 October, and, on the other hand, in Directive 2019/2161, which amended, among other directives, Directive 2011/83/EU, on consumer rights, in order to ensure consistency with the scope of application of Directive 2019/770, and which led to the amendment of several laws on consumer matters, namely Law no. 24/96, of 31 July, and Decree-Law no. 24/2014, of 14 February. 
Despite the express recognition of these business models within consumer protection law, doctrine and soft law have identified several points of conflict (and, for some, irresolvable) with the General Data Protection Regulation, namely the difficulty in finding a viable basis to ensure the lawfulness of the processing of such data. 
As the study of compatibility with the General Data Protection Regulation should not be overlooked, this paper will seek to assess how consumer protection law supports the consumer's contractual will, and how it can contribute to overcome the potential data protection obstacles, notably by helping to meet the legal requirements of the lawful basis of the necessity for the performance of a contract to which the data subject is a party.