Unfair Commercial Practices: A Complementary Approach to Privacy Protection
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Unfair Commercial Practices | 325
Unfair Commercial Practices:
A Complementary Approach to Privacy Protection
Nico van Eijk, Chris Jay Hoofnagle and Emilie Kannekens*
Millions of European internet users access online platforms where their personal data is be-
ing collected, processed, analysed or sold. The existence of some of the largest online plat-
forms is entirely based on data driven business models. In the European Union, the protec-
tion of personal data is considered a fundamental right. Under Article 8(3) of the EU Char-
ter of Fundamental Rights, compliance with data protection rules should be subject to con-
trol by an independent authority. In the EU, enforcement of privacy rules almost solely takes
place by the national data protection authorities. They typically apply sector-specific rules,
based on the EUData Protection Directive.1 In the United States, the Federal Trade Commis-
sion is the primary enforcer of consumers' (online) privacy interests. The agency's compe-
tence is not based on the protection of fundamental rights, but on the basis that mainte-
nance of a competitive, fair marketplace will provide the right choices for consumers to take.
In this Article the US legalframework will be discussed and compared to the EU legalframe-
work, which forms our finding that in the EU rules on unfair commercial practices could be
enforced in a similar manner to protect people's privacy.2 In the EU, the many frictions con-
cerning the market/consumer-oriented use of personal data form a good reason to actually
deal with these frictions in a market/consumer legal framework.
We will first set forth how the United States (US) ad-
dresses privacy issues through application of the Fed-
eral Trade Commission's (FTC) general power to pre-
vent unfair and deceptive trade practices. Developed
as a general tool to police business behaviour, we ex-
plain how the FTC's authorities are applied in the pri-
vacy field with two examples. Particular attention
will be given to the use of 'consent agreements': an
instrument used by the FTC to bind violators of un-
fair and deceptive trade practices laws to superviso-
DOI: 10.21552/edpl/2017/3/7
Nico van Eijk, Professor in Information Law, Institute for Informa-
tion Law (IViR), University of Amsterdam. Chris Jay Hoofnagle,
Adjunct professor in the School of Law and the School of Infor-
mation, University of California, Berkeley. Emilie Kannekens,
Former research master student, Institute for Information Law
(IViR), University of Amsterdam. For correspondence: <n.a.n.m
.vaneijk@uva.nl>.
This article is based on a paper presented at the 2nd European
edition of the Privacy Law Scholars Conference (PLSC-Europe),
Tilburg, The Netherlands, 17 May 2017. The authors want to
ry authority, long lasting obligations under the risk
of substantial-though rarely realised-financial
penalties. Thereafter, the European Union (EU)
framework of unfair commercial practices as set
forth in the Unfair Commercial Practices Directive
will be discussed. This article does not seek to give
an exhaustive description of the US and EU legal sys-
tem; its aim is to give a first view of a complemen-
tary approach for privacy protection in the EU by a
US example. Finally, in the analysis a first compari-
thank all those who shared their ideas and contributed to improv-
ing our project.
1 To be replaced (as of 25 May 2018) by the General Data Protec-
tion Regulation [GDPR, Regulation (EU) 2016/679]. For the
purpose of this article, there is no relevant difference between the
present and future regulatory situation.
2 For this contribution, the term 'privacy' is used as an umbrella
term to address both privacy in the traditional sense and privacy
protection with regard to the storage and processing of (digital)
personal data.
EDPL 3|2017](ViewImageLocal?handle=hein.journals/edpl3&div=61&collection=&method=preview&ext=.png&size=3)
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Unfair Commercial Practices: A Complementary Approach to Privacy Protection
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