“Pay or ok”. Pagar con datos personales tras la Directiva 2019/770: Una visión comparada entre España y Portugal

Resumo

Based on the ideas of consideration, price and counter-performance in the general theory of obligations and contracts, this text analyses the issue of payment with personal data in consumer contracts under Spanish and Portuguese law. Despite the fear of the lawmakers in using the word “consideration” in this context, we argue that we are dealing with payment with personal data whenever three conditions are met: (i) the processing of data is based on the consent of the data subject (consumer); (ii) the trader, who is responsible for the processing, binds their services to the consent of the consumer (data subject) in such a way that the synallagma do (res) ut des (data) occurs; (iii) the responsibility of the consumer, resulting from the freedom of consent. This last aspect means that the mere reciprocal restitution cannot be considered a damage caused by the withdrawal of consent.