Personal Data Supplying: The Issue of Bundled Consent

Despite the increasing attention given to the phenomenon of supplying personal data in order to get a content or a service, there are still many questions arising from the use of data instead of money that need to be answered. In particular, it is still debated whether personal data can be legitimately considered a tradeable asset or not. In this regard, the relationship between contract and data protection law is to be more precisely defined. Article 7(4) of the GDPR does not seem to prevent a data subject’s consent from being bundled to the conclusion of a contract and/or to the contractual performance, as is usually the case when digital contents and services are supplied against data. However, scholars, courts, national and European authorities still have different opinions not only with regard to the question of whether Article 7(4) of the GDPR provides for a (strict or weak) ban on tying, but also regarding the question of which specific facts must be considered when determining the consent’s freedom and validity (despite the link existing with the contract and the contractual performance).