Data Rights and Contract Law: Formation, Incorporation and Vitiating Factors

There is an emerging debate regarding the intersection and alignment between data protection and consumer law in the protection of individual choices regarding data. Underpinning much of this debate are assumptions as to the existence (or indeed, non-existence) of a valid contractual relationship. In this chapter, we analyse the interface between common law contract law doctrines and data rights in order to examine these assumptions. In particular, the chapter explores the application of contract law doctrines to individual choices to surrender personal data in exchange for access to content and/or services. We aim to analyse the question of whether the consenting to data processing leads automatically to the formation of a valid consumer agreement, and also what vitiating factors may set aside this process. Our argument is that the reality is more complex than the simple assumptions grounding much of the current policy debates and law reform suggest.