Whilst the financial value in data is being increasingly recognised, data itself is starting to be seen as a commodity that perhaps is now more important than oil. However, whilst significant technical advancements continue to be made to safeguard data, advancements in the legal tools to protect data have possibly lagged behind. Further, different countries continue to introduce conflicting requirements for protecting and requiring disclosure of data (such as the EU's General Data Protection Regulation and the US PRISM program), creating the so called "splinternet" phenomenon and additional legal risks for international businesses.
To solve these issues, at Walkers we have been working on a project to develop an innovative legal structure to hold and protect data.
Guernsey Data Trusts
Trusts are extensively used in Guernsey to protect assets. A trust is a legal arrangement whereby a person (the settlor) transfers assets to another person (the trustee) to hold for the benefit of the settlor or other persons (the beneficiaries) or for a specified purpose. The trustee becomes the legal owner of the assets, which the trustee must manage for the benefit of the beneficiaries or for the specified purpose. The terms on which the trustee holds the assets are set out in a trust instrument document. A Guernsey trust can be used to hold any types of assets, and any share, right or interest in the assets, including tangible and intangible property, and other rights and interests. In relation to data, examples of rights could include intellectual property rights in the data as well as licences to access, process and store the data.
Under a data trust, the trustee would hold the rights to the data, is legally responsible for the data and must apply the data for the benefit of the beneficiaries, or for the purpose of the trust. Importantly, the rights attaching to the data should be held by the trustee in Guernsey (although a third party data centre in Guernsey could be used to store the data) in accordance with Guernsey law requirements, including for data protection. The settlor and beneficiaries can be located anywhere in the world.
Authored by senior associate Stephen Ozanne, this article first appeared in EnVoyage Magazine.
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