Should Europe implement prosumer law?

"We are all becoming prosumers, sharing intimate details of our personal lives online,” wrote Ian Brown & Chris Marsden in their 2013 paper “Regulating Code; Towards Prosumer Law ”. I could not agree more.

We spend a striking amount of our time online. Not that anything is wrong with that. Just the opposite, the majority of us finds it convenient and, in some way, profitable. We use comparison sites to find the best prices for a product, we advertise second-hand objects via social networks and, since our friends are always happy to share our posts, we find a buyer in no time. We promote our intellectual work by twitting about some recent papers and presentations and we easily search for exciting career opportunities on LinkedIn.

The advent of Web 2.0 was a pivotal moment when ‘normal’ users were afforded the freedom to make and create by the Internet, writes Angela Daly in her working paper on “The internet, user autonomy and EU law”, in which she tracks the development of the internet from its beginning as an arena without centralised control up until today when the internet is seen “a heavily commodified space which has seen the emergence of for-profit actors performing a ‘gatekeeping’ function over data flows – both for their own economic benefit as well as for the state surveillance”.

The Web 2.0 has changed a passive user into an active prosumer and the argument is that the law should better acknowledge this changed reality seems perfectly valid.

However, the challenges related to the nature of the internet as a space of inherent economic and state surveillance remain present. Big data industry is based on data reuse, i.e. using the data for indefinite secondary purposes. This is of course in a direct conflict with the idea of user’s control and autonomy, which is essential to the prosumer law. The data that is instantly shared with third-party providers and transferred abroad is hard to track and monitor.

The algorithmic judgements that shape our reality are out of control, but do have a strong impact on our decisions. The researchers have recently found out how information about the US elections can be biased on Google. Algorithmic judgments become even more worrisome and have larger impact when combined with personal information.

Could prosumer law be the right answer to these and many more challenges in the data-driven age?

Following brown & Marsden, prosumer law recognizes the changing nature of an individual in the digital world and seeks for measures that make him better prepared for the fierce digital economy. Similar although less clearly articulated thinking can be observed in the idea of strengthened data subject rights often noticed in the EU policy dialogue and in the call for users autonomy, proposed by Daly.

In principle, prosumer law solutions come from a couple streams:

· competition law, e.g. the provisions on interoperability and portability

· data protection law and data subject rights

· consumer protection law

In terms of data protection, the GDPR brings some welcome changes that can be seen as a way toward prosumer-oriented EU law. Three most visible improvements are data portability, the right to be forgotten and enhanced transparency requirements.

Although bringing the prosumer approach into the is not a revolutionary change, it can still be a good strategy when looking for fresh solutions for the privacy and other challenges in the data-driven society.