Substantive fairness in the GDPR: Fairness Elements for Article 5.1a GDPR

Abstract

According to the fairness principle in Article 5.1a of the EU General Data Protection Regulation (GDPR), data controllers must process personal data fairly. However, the GDPR fails to explain what is fairness and how it should be achieved. In fact, the GDPR focuses mostly on procedural fairness: if personal data are processed in compliance with the GDPR, for instance, by ensuring lawfulness and transparency, such processing is assumed to be fair. Because some forms of data processing can still be unfair, even if all the GDPR's procedural rules are complied with, we argue that substantive fairness is also an essential part of the GDPR's fairness principle and necessary to achieve the GDPR's goal of offering effective protection to data subjects. Substantive fairness is not mentioned in the GDPR and no guidance on substantive fairness is provided. In this paper, we provide elements of substantive fairness derived from EU consumer law, competition law, non-discrimination law, and data protection law that can help interpret the substantive part of the GDPR's fairness principle. Three elements derived from consumer protection law are good faith, no detrimental effects, and autonomy (e.g., no misleading or aggressive practices). We derive the element of abuse of dominant position (and power inequalities) from competition law. From other areas of law, we derive non-discrimination, vulnerabilities, and accuracy as elements relevant to interpreting substantive fairness. Although this may not be a complete list, cumulatively these elements may help interpret Article 5.1a GDPR and help achieve fairness in data protection law.