European Union: Building The EU Data Economy: Time For An Upgrade?

The EU Commission recently launched a Public consultation on Building the European data economy. The objective behind the consultation is to feed into the Commission's future policy agenda on the European data economy in 2017.

The data economy

In its Communication entitled "Building a European Data Economy," the Commission has re-identified (from its 2012 Communication) the need to upgrade the EU's legal regarding the trade of data.

The Commission emphasises that "Unjustified restrictions on the free movement of data are likely to constrain the development of the EU data economy". Data – and access to it – is at the heart of economic growth, job creation and societal progress, and data analysis has an influential role to play in innovation, decision-making and predictions about future trends and events. A balance, therefore, needs to be struck.

The public consultation

The most recent Communication acknowledges that the lack of a free flow of data in the legal framework ultimately hinders access to large data sets, presenting barriers for start-ups and other new market entrants. The flow of data feeds into a "well-functioning and dynamic data economy".

The Consultation focuses on four key areas:

  1. Localisation of data for storage and/or processing purposes

    Concerns around data protection, albeit legitimate, should not be used by public authorities to place restrictions on the flow of data in an unjustified way. Consumer confidence is reinforced by the data protection legal framework, which is soon to be replaced by the new General Data Protection Regulation ("GDPR"). This set of rules, alone, supports the free flow of data and promotes trust around data processing.

    Restricting cross-border data flows and requiring data localisation could have the adverse effect of limiting businesses from cheaper and more innovative data services.
  2. Access to and re-use of non-personal data

    Data generated by machines presents "rich opportunities" for players in the market. Allowing access to machine-generated data – containing both personal and non-personal data – needs to be governed by an appropriately coordinated approach.

    The Commission will engage with Member States and other stakeholders to explore the idea of a future EU framework for data access.
  3. Liability

    Determining who should be held liable when damages arise from software defects, connectivity problems or incorrect operation of the machine can be difficult. The need to provide certainty for both users and manufacturers is crucial to the emergence of data economy.

    The Commission is consulting stakeholders on the adequacy of the current EU rules on liability. It is also worth noting that a parallel public consultation into the Products Liability Directive is also being carried out.
  4. Portability of non-personal data, interoperability and standards

    More emerging issues in the data economy have been identified, including portability of non-personal data, the interoperability of services to allow data exchange, and appropriate technical standards for implementing meaningful portability. The Commission summarised the following:

    • Portability of non-personal data: although the GDPR provides individuals with the right to receive personal data in a structured, commonly used and machine-readable format and for it to be transmitted to another provider, there is currently no right to portability in respect of non-personal data. Meaningful portability for both personal and non-personal data would encourage the wide-spread exchange of data and could benefit the EU data economy.
    • Interoperability: in respect of online platforms, the use of data inoperability facilities (i.e. enabling multiple digital services to exchange data seamlessly, facilitated by appropriate technical specifications) for not only switching, but the concurrent use of several platforms, could develop innovation in the digital economy.
    • Standards: portability policies must be supported by appropriate technical standards to ensure meaningful portability.

Putting words into action

Following the consultation, which is open until 26 April 2017, the Commission aims to identify the key emerging issues and develop proposed solutions to enhance the evolving EU data economy.

Data-driven technologies are transforming our economy and society, so it's comforting to see that the Commission recognises the need to modernise our legal framework to avoid unnecessary barriers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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