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This paper explores the relation between the European rules on data protection and the commercialization of data. After contextualising the ongoing data revolution, it is argued that the practice of commercializing data may raise problematic issues under data protection law in two fundamental respects. First, it is often unclear whether data protection law should apply to begin with (‘the “if” problem’). Secondly, when and if data protection law applies, it is frequently hard to determine how it should apply (‘the “how” problem’). As we will observe, both the irreducibly dynamic nature of data and the conceptual blurriness of our legal discourse risk setting data protection law and trade in data on a baleful collision course.

This article analyses the compromise required between certainty and flexibility in long-term contracts, which would appear to be intrinsically linked to the adoption of adjustment tools. The allocation of rights and risks at the beginning of a contract may include the enforceability of clauses which empowers one party to unilaterally amend the original terms of the contract. On the one hand, a right granted by a change of terms clause, if properly exercised, may allow both parties to obtain the most from a long-term contract. On the other, it is essential to provide limitations so as to avoid the result that this contractual dexterity gives an unfair advantage to one party to the detriment of the weaker party.

The English law of the illegality of contracts is founded on public policy and expressed in the maxim ex turpi causa non oritur actio meaning an action cannot arise from an illegal cause. Furthermore, the position of the law is that where a contract is tainted with illegality and both parties are equally to blame then neither party can claim any right or remedy under the contract. This doctrine has to be viewed within the context of the employment contracts which are against public policy, particularly those where illegality of contract concerns irregular migrants who have been offered terms which infringe the legislation such as the Immigration Acts and the Modern Slavery Act 2015. The question in this paper is the scope of the public policy requirements that courts take into account when the contracts are unenforceable for illegality based on infringements of the human rights framework and ECHR legal precedence.