Leiden Law Blog

Should Europe implement prosumer law?

Should Europe implement prosumer law?

We spend an amazing amount of our time online. Not that there’s anything wrong with that. Just the opposite - most of us find it funny, convenient and sometimes even profitable. We use comparison sites to find the best prices for a product, we advertise used goods via social networks and, since our friends are always happy to share our posts, find a buyer in no time. We get exposure for our intellectual work by tweeting about some recent papers and we can easily search for exciting career opportunities on LinkedIn.

The advent of Web 2.0 was a pivotal moment when ‘normal’ users were afforded the freedom to make and create by the Internet,” writes Angela Daly in her working paper on “The Internet, user autonomy and EU law”, in which she tracks the development of the Internet from its origins as an arena without centralised control to the present day. Indeed, Web 2.0 has given once passive users exciting opportunities to take a more active role on the Internet.

At the same time, the rise of Web 2.0 has had another effect – it has transformed the common user into a prosumer. In the modern sociology and anthropology literature the term prosumer relates to a person who takes part in the online production or distribution process without being paid for it in wages. However, the term prosumer is also used to describe individuals who pay for digital services with non-monetary assets. These payments are typically executed via online platforms through the provision of creative content (e.g. uploading texts and photos) or the provision of data (e.g. giving away email addresses, contacts and consumption habits). While online commercial platforms compensate such users with discounts and free communication services, the gap between decreasing benefits and increasing costs of the online prosumption may lead to the exploitation of certain users.

Taking into account prosumerism’s cons, the argument arises whether the law should better acknowledge this changed reality. Could prosumer law be the right answer to this and many more challenges in this data-driven age?

According to Brown & Marsden, prosumer law recognises the changing nature of individuals in the digital world and seeks measures to better prepare them for the fierce digital economy. In principle, prosumer law solutions could come from the following fields of law:

  • competition law, e.g. the provisions on interoperability and portability
  • data protection law, in particular the section on data subject rights 
  • consumer protection law

In terms of data protection, the recently adopted GDPR brings some welcome changes that can be seen as a way forward in prosumer-oriented EU law. The three most visible improvements are data portability, the right to be forgotten and enhanced transparency requirements.

Similarly, EU consumer protection law has exhibited tensions to more directly target digital services on the data-driven markets, e.g. through the prohibition of unfair practices. The proposed EU directive on digital content is the first legal instrument that regulates contracts based on the freemium model (pay-with-your-data) and recognises personal data as a monetary substitute. 

Although embracing the prosumer approach is not a revolutionary change, it could be a good strategy when looking for fresh solutions for privacy and other legal challenges in our data-driven society. 

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