Transfer of Personal Data as Counter Performance: Comparison of the Illegality and Unfairness Doctrine between European and Malaysian Context

Abstract

This article examined the differences between the European Countries' and Malaysia's stances in terms of the illegality and unfairness of transferring personal data as counter performances. The research was based on law cases and legal provisions of both Malaysia and Europe. References were also made to cases from the United Kingdom and India as their law is in pari materia with Malaysia’s law. Research showed that in economic value, personal data in both Malaysia and European Countries are still ambiguous. However, in Malaysia, there is a possibility that the transfer of data is already sufficient and therefore constitutes a valid consideration. It was also found that, as an unlawful consideration will automatically be prima facie void, the doctrine of illegality should be extended to general contracts in Malaysia. Under unfairness, European Countries are provided with the Unfair Contract Terms Directive, Malaysia however still lacks statute to address unfair contract terms, therefore, Malaysia still depends a lot on the previous court judgement. This paper opines that Malaysia should enact its own legislation concerning unfairness especially when it comes to personal data as consideration. Theoretical and practical implications were discussed.