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ITI Presents the EU Data Act: Ensuring Fair and Balanced Rules for Data

On March 15, ITI hosted the virtual event “ITI Presents the EU Data Act: Ensuring Fair and Balanced Rules for Data.” Yvo Volman, Director of the Data Directorate in the European Commission’s DG Connect, joined ITI’s Senior Vice President and Director General for Europe Guido Lobrano for a discussion on the Data Act proposal.

In case you missed it, you can find a recap of the event below or watch the event here.

Guido Lobrano kicked off the discussion noting how growing data volumes and technological advancement improve every aspect of our lives by providing personalized products and services and ensuring efficient use of resources. The tech industry is supportive of the goal to improve data access and use and this can be achieved through voluntary schemes based on industry best practices, instead of data sharing mandates, Guido Lobrano said. He continued by stressing the importance of protecting companies’ intellectual property rights and trade secrets and preserving investment incentives. He concluded by reiterating that the Data Act must not hinder the free flow of data across borders, as it is crucial to ensure the competitiveness of EU businesses, and adding that non-personal data does not pose the same risk to fundamental rights as personal data.

“Our industry supports the goal of improving data access and sharing. It is paramount that the legislative framework for data sharing increases legal certainty, preserves economic incentives for companies and ensures that the rights of all the actors involved are safeguarded.” - Guido Lobrano, ITI’s Director General for Europe

Yvo Volman started by explaining the reasons behind the Data Act proposal, namely, to increase data access and use and foster trust in data sharing. The Data Act will apply to connected objects, allowing users to access the data generated by these objects while at the same time preserving manufacturers’ right to use the same data.

“Europe should be able to benefit from the value of its industrial data, and we need to act now to make it happen.” - Yvo Volman, Director of the Data Directorate at DG Connect, European Commission

Yvo Volman clarified the scope of the proposal for the Chapter on IoT data, which will cover connected household and industrial objects that collect and generate data about their performance and environment and are able to transmit the data. Products whose primary function is to simply store data or display or play content, like computers, will remain outside of the scope. However, some other products like voice assistants might be caught in the scope for certain use cases and remain outside for others. He also explained that while the Data Act is not a data protection instrument, it covers personal data and, therefore, interacts with the GDPR, complementing and strengthening the portability right under article 20 of the GDPR, by clarifying the scope of data portability in the context of data from IoT objects.

Yvo Volman highlighted that the Data Act, and in particular enabling the user to access and share data, has the potential to add EUR 270 billion to the EU-27 GDP, create opportunities for SMEs and improve consumer welfare through better services.

Asked about how to balance the goal to increase data access with the necessary protection of companies’ trade secrets, Yvo Volman noted that this protection should not undermine the user’s right to access data. Provisions contained in the Data Act proposal allow the user and the data holder to agree on measures to protect trade secrets, in particular in situations where third parties get access to the data. When that is to take place, the third party must take all specific necessary measures agreed with the data holder to preserve the confidentiality of the trade secret. Guido Lobrano followed up with a question on the prohibition for third parties to develop a competing product, to which Yvo Volman explained that competition law concepts will be used to establish when two products are in competition and whether they were developed independently from one another. Yvo Volman also added that while third parties are limited when it comes to the ways they can use the shared data, there are no restrictions to users’ right to access and use object-generated data apart from the prohibition to develop a competing product.

The discussion then moved to the obligation the Data Act will create for data holders to share data with public bodies in exceptional circumstances, in particular in cases where the lack of data prevents the public body from fulfilling a specific task in the public interest. Guido Lobrano noted that it will be important to ensure clear definitions of the specific cases as well as safeguards to ensure that requests are proportionate.

The discussion prompted many audience questions on the different aspects that will be regulated by the Data Act. Yvo Volman explained that the provisions regulating the business-to-government (B2G) data sharing will not serve as another channel for gathering data for law enforcement purposes. A high level of data protection should be ensured by the public bodies at all times. Furthermore, Yvo Volman stressed that data shared under the Data Act B2G sharing obligation will not become open data under the Open Data Directive. Finally, in the B2G context, public authorities could require access to raw data only, and in some instances, to ensure the protection of data, privacy-enhancing techniques such as anonymization might be required.

Finally, regarding the measures on International Transfers and government access to Data, Guido Lobrano reiterated that data flows are the backbone of the digital economy and they are key to the EU’s global competitiveness. It is thus imperative that data flows are not hampered by Data Act. Yvo Volman noted that the provisions in the Data Act aim to prevent third-country intelligence services from getting access to European data in conflict with EU law.

The bottom line: The Data Act is a crucial piece of legislation for the tech industry. As the work on the proposal moves forward, it is important to ensure the right balance between the different interests at stake, bolster data sharing and ensure the appropriate incentives for innovation are in place.

Public Policy Tags: Data & Privacy