The European Commission (the executive branch of European government) released a new data strategy earlier this year to relatively little fanfare. In this article, I look at the European Commission’s proposed new data markets or ‘data spaces’ and indicate what this could mean for discovery litigation.
The European Union’s General Data Protection Regulation (GDPR) which came into force in early 2018, introduced strict new rules for any organization that is doing business with customers or potential customers in the EU. The focus in the GDPR – and the policy and enforcement focus of European regulators to date – has been on data protection: The processing and use of personal data is seen as a potential vulnerability in an organization, in need of regulatory safeguards.
The latest proposal would see a shift in focus. The focus here is on enabling individuals and innovative organizations through data. The European Commission identifies several problems with the current situation:
Data for the public good is not shared sufficiently. Consider, for example, data related to natural disasters, pandemics, and crime data. There is a concern that current regulatory settings do not support the sharing of this data and there needs to be increased sharing between regulators, private businesses, and individuals;
Imbalances in market power. For example, large online platforms (e.g., social media) may hold on to significant amounts of data to detriment of smaller competitors;
Data interoperability and quality. Data isn’t always available in a form that makes sharing and use of that data straightforward.
The European Commission proposes to enhance business-government data sharing, including addressing limiting issues such as usage rights for data generated by multiple parties working together: The general principle will be the encouraging of voluntary data sharing. Through this initiative, a range of different ‘data spaces’ would be created for the sharing of data, covering:
-Industrial (manufacturing) data;
-Green Deal data. This covers a range of environmental data relating to the EU’s ‘Green Deal’;
-Mobility data. This would cover data relating to intelligent transport systems across the EU;
-Health data. This space would be intended to promote advanced in evidence-based medical care;
-Public administration data. This data would be intended to improve transparency and accountability in public administration;
-Skills data. This would be intended to better match the demand for skills with existing educational programs.
At this point, the proposals are fairly high level and ‘blue sky’. However, if these proposals were to be accepted and passed into law, we might see the following impact:
-Increased legal action relating to intellectual property with businesses interested in keeping their data out of data markets;
-Parties bringing discovery proceedings in the EU needing to recognize the impact that data markets might have on making personal data becoming more available. E.g., in small industries, anonymous industry data might be combined with publicly available information to identify an individual (thus creating personal data). Parties to litigation would need to consider what discovery and disclosure would release newly available personal data.
We can expect to see a shift in emphasis from the EU when it comes to data protection in the coming years. With a new focus on the sharing of data, it is possible that this could have a substantial effect on companies litigating in the EU.
For more recent discussion of data governance under the GDPR see Schrems Shreds the Shield: EU Court Decision Invalidates Data Transfers to the United States