Tar Lazio to affirm the economic value of personal data. Is this the end of free-services?

By partially sustaining the Antitrust sanction to Facebook, Tar Lazio confirms that personal data “worth”. What does this mean for the Internet ecosystem?
by Andrea Monti

Judgment no. 260/2020 of the first section of the Lazio Regional Administrative Court, decided the case that Facebook brought on behalf of the Antitrust Authority, which, twenty years later, reaffirmed the non-free (as in ‘free beer’) nature of a service which, while not requiring payment in currency, makes its use conditional on its authorization to process personal data.

On the basis of this assumption, the Antitrust had indicted the social network to two sanctions of five million euros. The first, confirmed by the TAR, sanctioned as an unfair commercial practice the insufficient clarity and incompleteness of the information on the collection and use of user data. The second, canceled, sanctioned as an aggressive practice the transmission of users’ data to third parties,

without the express prior consent of the person concerned, for the use of the same for profiling and commercial purposes.

The judgment, among the various legal issues dealt with, makes an important statement on the “value” of personal data, stating that

personal data are “assets” available in the negotiating sense, susceptible to economic exploitation and, therefore, suitable to assume the function of “counter-performance” in the technical sense of a contract.

In other words: personal data can be used to pay for goods and services (not only) online. A legal principle that has been supported by the participation in the trial of the consumer rights ONG Altroconsumo.

This statement – which to many might seem obvious – is not, in reality, because many jurists, and the Data Protection Authority itself, do not share this vision.

“Monetizing” personal data, in fact, would mean reducing the effectiveness of the protection of fundamental rights to which the regulations have been issued. In practice: if I can “buy and sell” my data, it means that everything is left to the will of the individual and it becomes difficult to continue to think of the protection of personal data as a fundamental right: freedom is not bought and not sold.

It must be said, however, that the TAR Lazio has not expressed such a new or revolutionary principle, because, as said already, since 2000, accepting the claim of ALCEI (the oldest NGO to deal, outside the USA, with digital rights) the Antitrust Authority, declared misleading the advertising of the free-mail service Libero advertised as “free” because it established that asking for data in exchange for the service had an economic importance.

In 2018, with ruling 17278 of 2018, the Court of Cassation also ruled, albeit with caution, in a similar sense, establishing that in the case of non-essential services it was possible to condition their use to the provision of consent to the processing of data. The judges do not expressly say that personal data are equivalent to “currency”, but in essence they consider them an “asset” that can be surrendered if someone is willing to accept it.

What does this decision mean for the digital ecosystem (and not only for that)?
Firstly: the possibility of doing marketing and communication using the ambiguity of the word free, which explains the free software movement, can mean “free” (as in free beer) or “free” (as in frees speech). Therefore, after this ruling, it is desirable that we no longer see services presented as “free” but that, in reality, are paid for even if in a different way.

Secondly, when a service “paid” in personal data is not “free”, the rules on the contractual liability of the service provider also change.  When a service (including software) is “free”, it can be provided in “as is” mode, without assuming responsibility: you do not pay, you assume the risk of suffering damages. But if the service is not “free” because in reality it is paid with instruments other than paper money, then the mechanism of liability returns to full operation: I pay, so I am entitled to guarantee and compensation in case of malfunctioning.

We are faced with a disruptive effect on economic models built on the rhetoric of “free”, which is only theoretical. Hardly, in fact, unless pilot rulings impose a change of course, commercial strategies will change spontaneously.

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