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Datafication > Datafication 9 > Flashcards

Datafication 9 Flashcards

1
Q

Unfair Commercial Practices Directive

A
  • marketing law
  • concerning business to consumer commercial practices
  • harming consumers economic interests in EU
  • Interests: trader = marketing to present products in best way <-> consumer: find suitable deal
    -> ensure marketing doesnt decrease informed choice
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2
Q

Unfair Contract Terms Directive

A
  • protects consumers from unfair terms and conditions in a standard contract they purchase (not self negotiated)
  • Unfair = contrary to good faith contract cause significant imbalance in parties rights & obligations to detriment of consumer
    -> unfair contract terms not binding to consumer
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3
Q

EU Charter of fundamental rights

A

Art. 38 Union policies shall ensure a high level of consumer protection

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4
Q

Legitimate basis: Marketing by email

A

consent (not balancing test)

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5
Q

Legitimate basis for marketing

A
  • Best option: consent (Clarity & avoids offending consumer)
  • direkt marketing also legitimate interest
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6
Q

Cookies

A
  • small pieces of data that are sent from website & stored on users’ computers by their browser while browsing internet
  • may be necessary for using website (e.g. operating a shopping cart)
  • if not necessary: consent required
  • Data protection by design & default requirement: equal friction to consent & non consent (e.g. considering colors, placement of boxes) -> avoid consent by default
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7
Q

Commercial Practice

A

= act incl. advertising & marketing by trader directly connected with promotion, sale or supply of product to consumer

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8
Q

Unfair

A

1) contrary to professional diligence &
2) economic distortion: (likely) materially distorts the economic behavior regarding product of an average consumer (= normative, how consumers should behave)

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9
Q

UCPD: Cases for prohibiting commercial practices

A
  • Blacklisted commercial practices (per se prohibitions that protect all (not only average) consumers, e.g. “gratis” if > unavoidable cost
    Average Consumer:
  • Misleading & aggressive practices
  • Contrary to professional diligence
  • Economic distortion regarding a product
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10
Q

Aggressive (= Manipulative) Commercial Practices

A
  • harassment, coercion (including physical force) or undue influence
  • negatively affect average consumers freedom of choice
  • & otherwise not taken decision
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11
Q

Undue Influence

A
  • exploiting a position of power
  • by pressure (no physical force)
  • which limits consumers ability to make informed decision
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12
Q

Aggressive (= Manipulative) Commercial Practices - e.g.

A
  • Threatening or abusive language
  • Exploitation of misfortune or circumstance known by trader
  • Barriers to exercise rights
  • Threats to take action that cannot legally be taken and likely to affect transactional decisions
  • conducts that put pressure on consumer so that freedom of choice significantly imparted
  • attitude that is liable to make consumer feel uncomfortable
  • announcing less favorable conditions as consequences of delayed actions of consumer
  • choice architecture (= technology used to manipulate users)
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13
Q

Profiling Art. 4(1)(4)

A

= any automated processing of pd to evaluate certain personal aspects relating to np (analyze or predict aspects concerning np performance)

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14
Q

Automated individual decision making (including profiling)

A
  • Not based on sensitive pd (Art. 9)
  • Suitable measures to safeguard legitimate interest: Right to obtain human intervention, express point of view & contest decision; Information about logic; Requirements of accuracy & data minimization
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15
Q

Prop. Regulation on Privacy & Electronic Communication

A
  • Complements & particularizes GDPR
  • Confidentiality of electronic communications data:
  • Metadata & content: Consent &/or necessity (Only if purpose could not be fulfilled anonymously; Possibility to withdraw at any time, reminded every 6 months)
  • Cookies: Consent &/or necessity (If technically possible & feasibly: consent by using appropriate technical settings of software application enabling access to internet (software: option to prevent 3rd party access))
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16
Q

Direct marketing

A

= any solicitation aimed at individuals to make sales at some point; legitimate interest
(e.g. sending of an email to obtain consent to send direct marketing in future also already direct marketing)

17
Q

Direkt Marketing: which laws?i

A
  • Personalized marketing includes processing pd (e.g. decision use e-mail address) &
  • commercial practice (e..g sent mail)
    -> must comply with both marketing & data protection law
18
Q

Unsolicited communication

A

message to which subscribers or user have not given prior consent

19
Q

GDPR law for direkt marketing

A

Right to object at any time, including profiling (right must be explicitly brought to attention, clearly & separately at time of first communication with ds)

20
Q

E-Privacy Directive Art. 13 law for direkt marketing

A
  • Automatic calling machines, fax or electronic mail only used for purpose of direct marketing when natural persons subscribers & have given prior consent
  • Exception: trader may use electronic contact detail from customer for direct marketing of tis own similar products, but customer must have clearly & distinctly opportunity to object, free & easy (-> in this context can use pre-checked box)
21
Q

Unfair Commercial Practices Directive, Annex I - law for direkt marketing

A

Persistent & unwanted solicitations by phone, mail, fax & other remote media = aggressive (blacklisted) commercial practice (Item 26)

22
Q

Commerce Directive Art. 7(1) - law for direkt marketing

A

Clearly & unambiguously identifiable when received

23
Q

Prop. Regulation on Privacy & Electronic Communication - law for direkt marketing

A

Direct marketing: consent or existing relation

24
Q

Data Portability: GDPR Art. 20

A
  • Purpose: not regulate competition?
  • Pursuant to consent &/or contract – marketing & balancing test (only automated means)
  • “Provided by” includes observed data
  • Structured, commonly used & machine readable (right to transmit those data to another controller; directly when technical feasible)
  • Without prejudice to Art. 17 (right to erasure) & other rights (not automatic erasure)
  • Shall not adversely affect rights & freedoms of others
25
Q

The illusion of the (“empowered”) rational consumer

A
  • Privacy paradox: trading privacy for convenience
  • Subscriptions & amendments of terms
  • Freely given, informed & unambigiuos consent
    -> Herding: peer-pressure; bounded willpower -> Bounded rationality & information overload
  • Role of consumer protection law: aggressive practices, unfair contract terms

Datafication (10 decks)

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