EAN: 9783869654140

DATA PROTECTION IN CONTRACTUAL RELATIONSHIPS (A...

The General Data Protection Regulation (GDPR) sets forth that a justification is required for a
company (the controller) to process personal data. The list of justification grounds in Art. 6
(1) GDPR is exhaustive. Art. 6 (1) (b) GDPR provides that the controller acts justifiably if
the processing of personal data is necessary for the performance of a contract to which the
data subject is party. The use of this legal justification ground makes recourse to Art. 6 (1)
(f) GDPR (legitimate interests) or Art. 6 (1) (a) GDPR (consent) unnecessary. This leads to the
accusation from data protection authorities and members of the data protection community that
companies relying on Art. 6 (1) (b) GDPR could undermine data protection. Companies are accused
of trying to circumvent the purportedly proper and correct standards of data protection. Behind
this is the notion that data protection consent is the gold standard of effective data
protection. The following monograph challenges this view. It is based on the thesis that
effective data protection in contractual relationships can and must be realized above all
through an appropriate design of the contractual relationships. A consent requirement
downstream of the conclusion of the contract does not strengthen the digital autonomy of the
data subjects  but ultimately contributes to its weakening. The level of protection envisaged
by Article 8 CFR cannot be achieved by constantly increasing the number of consent requirements
in the digital world - this only leads to consent fatigue. The monograph describes in detail
which specific requirements arise from this for the understanding of Art. 6 (1) (b) GDPR.

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