Wednesday, 18 February 2015

Consumer law as a solution to online privacy issues?

Can (European) consumer law be used to help increase privacy protection online? Other solutions applied so far (e.g. mandatory disclosures about privacy policies; informed consent requirement) are constantly being evaluated as insufficiently effective. Consumer protection organisations, etc. are, therefore, starting to consider the application of more traditional consumer protection measures to protect privacy online. Together with my colleague, Marco Loos, we have already considered whether, e.g., consumer protection against unfair contract terms and private international law rules protecting consumers could apply to contracts for the provision of online services and what scope of protection they could guarantee consumers (see Wanted: A Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers). Some national courts (in France and Germany) are already engaged in evaluating the applicability of such consumer protection measures to online privacy policies and other online terms and conditions (see European Consumer Legislation and Online Privacy Policies: Opening Pandora's Box). French consumer agency DGCCRF also published certain recommendations as to what clauses could be considered abusive or illicit under French consumer law (Recommendation no. 2014-02). The authors of the online article (M. Kuschewsky, C. Ryckman) worry about the possibility that the consumer protection measures could apply to the evaluation of online privacy policies, since this could: 1. complicate the legal environment for the assessment of the validity of such terms (consumer legislation applying next to and not instead data protection legislation); 2. increase competence quarrels between the authorities supervising online traders and service providers (consumer authorities next to data protection authorities). These worries may, of course, be justified to an extent. However, the (European) courts and legislators could introduce legal certainty as to the scope of application of consumer protection measures to online privacy policies and consumer and data protection authorities could work together enforcing compliance therewith. This could give enough incentive to online service providers and traders to introduce more transparent, user-friendly terms and conditions, also in their privacy policies. Indeed, this could signify that these traders/ service providers would need to provide two sets of terms and conditions: EU and global ones, but as long as the protection in the EU would be harmonised and not country-specific, the costs thereof could be limited.

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