Band 16, Heft 3

In data-driven business models, users’ personal data is collected in order to determine the preferences of consumers and to the tailor production and advertising to these preferences. In these business models, consumers do not pay a price but provide their data, such as IP numbers, locations, and email addresses to benefit from the digital service or content. Contracts facilitate interactions between these providers and users. Their transactions are regulated by contracts in which their agreement on data use and data processing are stipulated. Data is always collected and processed through a contractual relationship and in this paper, I will argue that there are problems arising from contracts involving data to which contract law applies and that contract law can map these problems and offer insights. The scope of this study will be limited to issues where data is provided as counter-performance and where data is provided in addition to a monetary payment.

The ‘personalization of the law,’ based on new technological possibilities such as algorithmic analysis of Big Data, is said to be the wave of the future. Especially default rules seem to be particularly apt for personalization, because they are – at first glance – supposed to mirror what the parties would have wanted. This article aims to unveil the limits of preference-based personalization of default rules. In the first part, I attack default rule personalization on theoretical grounds. I analyze the theoretical underpinnings of default rule personalization, which I describe as ‘empirical subjectivism,’ and I challenge this position with arguments from classical and behavioral law and economics. I thereby develop the opposite explanatory model: ‘normative objectivism.’ The arguments presented also provide new insights of default rule analysis which are valid well beyond the personalization debate. The ‘default rule paradox,’ ‘pushing vs pulling default rules,’ or the analysis of default rules as ‘property rules’ and as ‘rules of civility’ are some examples. In the second part, I attack default rule personalization on constitutional grounds with particular focus on the Constitutions of the United States and Germany, as well as the European Charter of Fundamental Rights. So far, neither default rules nor personalization have received a detailed analysis based on constitutional principles. My article provides this analysis with regard to the principles of freedom and equality. I show how personalization reduces freedom in the private and public sphere, because the so-called choice- or agency-dimension of freedom will be significantly limited. In broader terms, the paternalistic tendencies of personalization will trigger the replacement of the ‘entrepreneur’ and ‘citizen’ by the ‘consumer’ as role-model of societal organization. Economically, this development will be accompanied by a shift from capitalism to what I call ‘micro-socialism.’ With regard to the principle of equality, I analyze how personalization leads to inequality by distinguishing ‘intra-preference-classifications’ and ‘inter-preference-classifications.’ I then present justification problems, especially with regard to discriminations that trigger strict and intermediate scrutiny. Finally, I sketch out how personalization would dissolve the essence of the principle of equality and thereby trigger a shift ‘from contract to contact’ or ‘from association to accumulation,’ which is no less important than the previous societal shift ‘from status to contract’ or ‘from community to association.’ In sum, the article combines different discourses around default rules, personalization, and constitutional law, and thereby provides new insights in each of them.

Relief or compulsion are the two classes of remedy granted for a breach of contract. Traditionally English law is considered to favour relief-based remedies whilst French law prefer compulsion-based remedies. This article seeks to challenge this orthodoxy through the analysis of relatively recent changes in both jurisdictions regarding enforced performance in kind. More importantly, the influence that performance in kind has on other contractual remedies and clauses must be taken into account. Both contractual damages and penalty clauses are shaped by the availability of enforced performance in kind. Comparing English and French law shows that these two systems are converging which enables lawyers to anticipate the evolution of their respective jurisdictions.