Personal data and direct marketing : Coase Theorem on EU Directive 95/46/EC

Abstract: The right to personal data is compared with the right to land. The concept of rights may be regarded as bundles of rights of which the right to use of scarce resources, the right to exclude and the right transfer rights are the most important ones. The development of Information Technology has reduced considerably the cost of using personal data leadingto an increased use of the data in the context of direct marketing by different firms. However, the use and processing of personal data may cause externalities, both positive and negative ones, on the individual to whom the data relates. This situation can be analysed with the Coase Theorem, where the transaction costs have important function. In a state of zero transaction costs the parties, firms and individuals, can make agreements of an optimal use of the personal data, independently of the assignments of rights to the personal data. Such agreements internalise further the externalities. However, in the real life the transaction costs are high meaning that the assignments of rights are most significant leading to that the externalities remain. To pass by the problem of transaction costs and externalities, zoning procedure with transference of rights can be used. The background of bundles of right to personal data together with the Coase Theorem and zoning procedure are applied to the Directive 95 /46/EC adopted by the European Union regarding the processing of personal data and the protection of privacy. This Directive may however be interpreted in different ways leading to that the assignment of rights and level of direct marketing is different between Member States.