Datafication 9 Flashcards
(25 cards)
Unfair Commercial Practices Directive
- marketing law
- concerning business to consumer commercial practices
- harming consumers economic interests in EU
- Interests: trader = marketing to present products in best way <-> consumer: find suitable deal
-> ensure marketing doesnt decrease informed choice
Unfair Contract Terms Directive
- protects consumers from unfair terms and conditions in a standard contract they purchase (not self negotiated)
- Unfair = contrary to good faith contract cause significant imbalance in parties rights & obligations to detriment of consumer
-> unfair contract terms not binding to consumer
EU Charter of fundamental rights
Art. 38 Union policies shall ensure a high level of consumer protection
Legitimate basis: Marketing by email
consent (not balancing test)
Legitimate basis for marketing
- Best option: consent (Clarity & avoids offending consumer)
- direkt marketing also legitimate interest
Cookies
- small pieces of data that are sent from website & stored on users’ computers by their browser while browsing internet
- may be necessary for using website (e.g. operating a shopping cart)
- if not necessary: consent required
- Data protection by design & default requirement: equal friction to consent & non consent (e.g. considering colors, placement of boxes) -> avoid consent by default
Commercial Practice
= act incl. advertising & marketing by trader directly connected with promotion, sale or supply of product to consumer
Unfair
1) contrary to professional diligence &
2) economic distortion: (likely) materially distorts the economic behavior regarding product of an average consumer (= normative, how consumers should behave)
UCPD: Cases for prohibiting commercial practices
- Blacklisted commercial practices (per se prohibitions that protect all (not only average) consumers, e.g. “gratis” if > unavoidable cost
Average Consumer: - Misleading & aggressive practices
- Contrary to professional diligence
- Economic distortion regarding a product
Aggressive (= Manipulative) Commercial Practices
- harassment, coercion (including physical force) or undue influence
- negatively affect average consumers freedom of choice
- & otherwise not taken decision
Undue Influence
- exploiting a position of power
- by pressure (no physical force)
- which limits consumers ability to make informed decision
Aggressive (= Manipulative) Commercial Practices - e.g.
- Threatening or abusive language
- Exploitation of misfortune or circumstance known by trader
- Barriers to exercise rights
- Threats to take action that cannot legally be taken and likely to affect transactional decisions
- conducts that put pressure on consumer so that freedom of choice significantly imparted
- attitude that is liable to make consumer feel uncomfortable
- announcing less favorable conditions as consequences of delayed actions of consumer
- choice architecture (= technology used to manipulate users)
Profiling Art. 4(1)(4)
= any automated processing of pd to evaluate certain personal aspects relating to np (analyze or predict aspects concerning np performance)
Automated individual decision making (including profiling)
- Not based on sensitive pd (Art. 9)
- Suitable measures to safeguard legitimate interest: Right to obtain human intervention, express point of view & contest decision; Information about logic; Requirements of accuracy & data minimization
Prop. Regulation on Privacy & Electronic Communication
- Complements & particularizes GDPR
- Confidentiality of electronic communications data:
- Metadata & content: Consent &/or necessity (Only if purpose could not be fulfilled anonymously; Possibility to withdraw at any time, reminded every 6 months)
- Cookies: Consent &/or necessity (If technically possible & feasibly: consent by using appropriate technical settings of software application enabling access to internet (software: option to prevent 3rd party access))
Direct marketing
= any solicitation aimed at individuals to make sales at some point; legitimate interest
(e.g. sending of an email to obtain consent to send direct marketing in future also already direct marketing)
Direkt Marketing: which laws?i
- Personalized marketing includes processing pd (e.g. decision use e-mail address) &
- commercial practice (e..g sent mail)
-> must comply with both marketing & data protection law
Unsolicited communication
message to which subscribers or user have not given prior consent
GDPR law for direkt marketing
Right to object at any time, including profiling (right must be explicitly brought to attention, clearly & separately at time of first communication with ds)
E-Privacy Directive Art. 13 law for direkt marketing
- Automatic calling machines, fax or electronic mail only used for purpose of direct marketing when natural persons subscribers & have given prior consent
- Exception: trader may use electronic contact detail from customer for direct marketing of tis own similar products, but customer must have clearly & distinctly opportunity to object, free & easy (-> in this context can use pre-checked box)
Unfair Commercial Practices Directive, Annex I - law for direkt marketing
Persistent & unwanted solicitations by phone, mail, fax & other remote media = aggressive (blacklisted) commercial practice (Item 26)
Commerce Directive Art. 7(1) - law for direkt marketing
Clearly & unambiguously identifiable when received
Prop. Regulation on Privacy & Electronic Communication - law for direkt marketing
Direct marketing: consent or existing relation
Data Portability: GDPR Art. 20
- Purpose: not regulate competition?
- Pursuant to consent &/or contract – marketing & balancing test (only automated means)
- “Provided by” includes observed data
- Structured, commonly used & machine readable (right to transmit those data to another controller; directly when technical feasible)
- Without prejudice to Art. 17 (right to erasure) & other rights (not automatic erasure)
- Shall not adversely affect rights & freedoms of others
