In data-driven business models, users’ personal data is collected in order to determine the preferences of consumers and to the tailor production and advertising to these preferences. In these business models, consumers do not pay a price but provide their data, such as IP numbers, locations, and email addresses to benefit from the digital service or content. Contracts facilitate interactions between these providers and users. Their transactions are regulated by contracts in which their agreement on data use and data processing are stipulated. Data is always collected and processed through a contractual relationship and in this paper, I will argue that there are problems arising from contracts involving data to which contract law applies and that contract law can map these problems and offer insights. The scope of this study will be limited to issues where data is provided as counter-performance and where data is provided in addition to a monetary payment.
Relief or compulsion are the two classes of remedy granted for a breach of contract. Traditionally English law is considered to favour relief-based remedies whilst French law prefer compulsion-based remedies. This article seeks to challenge this orthodoxy through the analysis of relatively recent changes in both jurisdictions regarding enforced performance in kind. More importantly, the influence that performance in kind has on other contractual remedies and clauses must be taken into account. Both contractual damages and penalty clauses are shaped by the availability of enforced performance in kind. Comparing English and French law shows that these two systems are converging which enables lawyers to anticipate the evolution of their respective jurisdictions.