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Unfair Commercial Practices:

A Complementary Approach to Privacy Protection

DOI https://doi.org/10.21552/edpl/2017/3/7

Nico van Eijk, Chris Jay Hoofnagle, Emilie Kannekens


Millions of European internet users access online platforms where their personal data is being collected, processed, analysed or sold. The existence of some of the largest online platforms is entirely based on data driven business models. In the European Union, the protection of personal data is considered a fundamental right. Under Article 8(3) of the EU Charter of Fundamental Rights, compliance with data protection rules should be subject to control by an independent authority. In the EU, enforcement of privacy rules almost solely takes place by the national data protection authorities. They typically apply sector-specific rules, based on the EU Data Protection Directive. In the United States, the Federal Trade Commission is the primary enforcer of consumers’ (online) privacy interests. The agency’s competence is not based on the protection of fundamental rights, but on the basis that maintenance of a competitive, fair marketplace will provide the right choices for consumers to take. In this Article the US legal framework will be discussed and compared to the EU legal framework, which forms our finding that in the EU rules on unfair commercial practices could be enforced in a similar manner to protect people’s privacy. In the EU, the many frictions concerning the market/consumer-oriented use of personal data form a good reason to actually deal with these frictions in a market/consumer legal framework.

Nico van Eijk, Professor in Information Law, Institute for Information Law (IViR), University of Amsterdam. Chris Jay Hoofnagle, Adjunct professor in the School of Law and the School of Information, University of California, Berkeley. Emilie Kannekens, Former research master student, Institute for Information Law (IViR), University of Amsterdam. For correspondence: <mailto:n.a.n.m.vaneijk@uva.nl>. This article is based on a paper presented at the 2nd European edition of the Privacy Law Scholars Conference (PLSC-Europe), Tilburg, The Netherlands, 17 May 2017. The authors want to thank all those who shared their ideas and contributed to improving our project.

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