Private Data Law: Concepts, Practices, Principles, and Politics

The aim of the project entitled “Private Data Law: Concepts, Practices, Principles and Politics”, conducted by Dr Przemysław Pałka from the Jagiellonian University, was to shed light on the mechanisms through which private law (civil law, economic law and privately made rules laid down in contracts) contributes to the growth of a data-driven society. The project was of crucial importance both in terms of theory and practice. The mechanisms had not been previously addressed in legal scholarship published in Polish or in English. Dynamic advances in data collection and analytics technology, as well as the proliferation of devices and services that generate data as a “by-product” of, e.g. shopping, browsing the Internet or moving around the city, have caused quite a stir in legal scholarship. A lot of ink has been spilled over how the law should respond to changes in technology so as to safeguard values such as privacy, autonomy and security, without hindering efficiency or social innovation. However, this approach conceives of the law as a purely reactive force that can do no more than respond to, or “catch up with”, technological change that supposedly takes place entirely outside its purview. The project “Private Data Law” took a different approach, positing that private law, along with economic and technological factors, is a creative force that contributes to the growth of the data-driven society.

dr Przemysław Pałka, fot. Michał Łepecki To test this hypothesis, the project looked for answers to four specific research questions. Firstly, it analysed how concepts such as “data” and “information” are used in legal and political discourses and how these vague terms could be replaced with other categories to increase the explanatory power of legal language. It also highlighted some of the practical difficulties involved in the distinction between personal and non-personal data and proposed a new category, i.e. “data about humans” in an article entitled Harmed While Anonymous: Beyond the Personal/Non-Personal Distinction in Data Governance (published in “Technology and Regulation”).

Secondly, the project thoroughly examined the content of privately created norms that regulate data-related social relations, laid down in terms of the service and privacy policies of various online platforms and applications. To this end, two databases were created, i.e. a database of 100 terms of service and 100 privacy policies, the first of which was then discussed in detail in A dataset on the contents of 100 terms of service of online platforms, analysed and evaluated under the EU consumer law (published in “Data in Brief”, Elsevier). Another article, The impact of the Digital Content Directive on online platforms’ Terms of Service (“Yearbook of European Law”, Oxford University Press), was based entirely on the analysis of these databases.

In addition, the project analysed which principles of private law and personal data protection law stand in conflict, and how the general principles of the former can be used to legitimise the wide-ranging collection of data about individuals. The results were discussed in Terms of Injustice (published in “West Virginia Law Review”) and Ciało obce: zasady RODO a gospodarka rynkowa [Foreign Body: the GDPR and the Market Economy] (published in “Internetowy Kwartalnik Antymonopolowy i Regulacyjny”).

The project also sought to determine which questions regarding the future of the norms that regulate the data-driven society are legal, and which are political. The answer was given in Is Centralised General Data Protection Regulation Enforcement a Constitutional Necessity? (published in “European Constitutional Law Review”, Cambridge University Press) and When “a Citizen” Becomes Little Mary J. The Abstract-concrete Effects in Legal Reasoning and the Rule of Law (published by Diritto & Questioni pubbliche). In addition, the project produced five chapters in different monographs, including two devoted to methodology, one focused on the conflict of principles, and two addressing the tension between legal and political questions.