International Journal of Law and Information Technology, 1/2017

International Journal of Law and Information Technology, 1/2017


The European consumer has substantial rights when contracting for goods or services online. Nevertheless, unlike European data protection law, specific requirements for adequate data security practices are largely absent from European legislation governing Business-to-Consumer (B2C) transactions. The following article evaluates the application of current EU consumer protection requirements and appraises the extent to which they oblige service providers to include data security or information regarding data security practices in contract terms. In addition to considering the core European consumer protection instruments currently in place, the article evaluates proposed legislation for digital goods and assesses its potential application to contract terms commonly offered by cloud service providers (CSPs). Furthermore, the article provides some comparative analysis of data security requirements from the USA.

Power has a lot to do with knowledge, access to, and utilization of data. But in the context of the debate about power, the question of data quality is hardly ever raised. This is because legal standards for data quality are lacking. The first attempts to regulate this question can be found hidden in Article 6 of the EU Data Protection Directive and in the regulation on scoring in section 28b of the German Federal Data Protection Act (BDSG). From this, with the help of initial research attempts by computer science and sociology, we can develop a provisional, fragmentary framework for legal standards in data quality, as I will demonstrate in the following 10 theses.

Limitations on online tracking are object of a regulatory debate that has shifted to the use of default rules to enhance privacy. The European Union implemented this idea with the Cookies Directive. The Directive aims to change the default system for tracking and move to an opt-in system in which data subjects must agree to it beforehand. This article evaluates the Directive’s implementation across Member States and studies the cases of the Netherlands and the UK. It then draws from the behavioural economics literature on default rules to evaluate these regulations and to consider whether it is possible to implement the policy in a way that avoids some of the problems they faced.
The article responds to a growing number of demands by governmental and non-governmental organisations that call upon the EU institutions to level the legal treatment of digital and physical goods. The article stems from the established criteria for distinguishing between goods and services in the marketing domain, and analyses on the importance attributed to the tangibility and tradability of products from the Court of Justice of the European Union’s case law. On this basis, consequences of treating digital goods as analogous to physical goods are considered in certain legal fields, where it has recently been demonstrated that the categorization of digital goods is of paramount legal importance, most notably in the field of copyright, taxation, and consumer protection law.

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