The European Data Protection Supervisor (EDPS) published an Opinion on 5 October 2018 regarding the European Commission’s legislative package “A New Deal for Consumers”. In the Opinion, the EDPS calls for closer alignment between consumer and data protection rules in the EU.
The Commission’s package, adopted earlier this year, includes two legislative proposals:
(1) a Directive on better enforcement and modernisation of EU consumer protection rules; and
(2) a Directive on representative actions for the protection of the collective interests of consumers.
The aim of this package is to modernise existing rules and provide better redress opportunities for consumers.
The Opinion has been published following calls from the EDPS for coherent enforcement by authorities responsible for the digital economy and society, including consumer, data protection and competition authorities.
In the Opinion, the EDPS welcomes the Commission’s intention to modernise existing rules and fill the gaps in the current consumer acquis (the body of common rights and obligations that is binding on all the EU member states) to respond to challenges such as emerging new business models where personal data is being demanded from consumers in exchange for access to digital content or making use of digital services.
However, the EDPS notes the following areas of the Commission’s proposals which require particular consideration:
- The concept of contracts for the supply of digital content or services for which consumers “pay” with their personal data instead of paying with money. This is problematic as it fails to respect the need to protect personal data and risks being interpreted in a way that is inconsistent with certain GDPR provisions, such as those relating to valid consent for data processing and the necessity of data processing for the performance of a contract.
- The proposals on collective redress should be adjusted to complement the provisions in the GDPR for the representation of data subjects in exercising their rights. This requires more systematic cooperation between consumer protection and data protection authorities, which could be done within the already existing voluntary network of enforcement bodies from competition, consumer and data protection areas – the Digital Clearinghouse.
- The EDPS welcomes the initiative to update the enforcement of consumer rules by revising the Consumer Protection Cooperation Regulation. However, he considers that it is important to further explore the synergies between data protection and consumer law with closer and more systematic cooperation between the relevant authorities wherever specific issues and concerns are identified which affect both sides. This could be achieved through initiatives such as the Digital Clearinghouse and the joint meetings of the European Data Protection Board and the Consumer Protection Cooperation Network.
As an independent supervisory authority, the EDPS is responsible for advising EU institutions on all matters relating to the protection of personal data, including legislative proposals. This legislative package is being adopted under the ordinary legislative procedure, which means that the final texts will need to be adopted by both the European Parliament and the Council. As such, the Opinion should inform their ongoing discussions and influence any amendments that may be proposed during the next stage of the legislative procedure.