Giles Pratt & Sam Kirsop

The European Commission has launched a consultation to gather views on building a European “data economy”. 

It comes as the Commission sets out its own plans for creating a single market for data in the EU. The Commission sees the free flow of data as vital for developing data-driven products and services, like cloud computing, the internet of things and connected cars. The Commission’s report also explores whether existing product liability rules can keep pace with these new technologies. 

The consultation covers four issues: 

1. Data localisation 

The Commission is concerned that many sectors – like accountancy, defence, financial services and healthcare – have specific national rules requiring companies to store data locally. It sees these data localisation requirements as a growing trend that will slow the uptake of cloud storage and computing. The Commission wants Member States to remove these digital borders, where possible, and is threatening to bring infringement proceedings against Member States to tackle any unjustified or disproportionate localisation rules. 

2. Access to non-personal data 

There has been a boom in the volume of machine-generated data, driven in part by the internet of things. However, the Commission believes that companies are keeping this data to themselves and that data marketplaces are rarely used. The Commission wants to put in place a framework to improve access to machine-generated data and to incentivise those who share their data. This could include introducing standard contractual rules for data licences, imposing a FRAND (“fair, reasonable and non-discriminatory”) assessment of terms in data licences, or creating a new IP right in raw machine-generated data.

3. Product liability 

New technologies raise novel questions about who’s to blame when things go wrong. In particular, the IOT is characterised by complex links between products, making risk allocation difficult, while autonomous technologies like connected cars can act independently of humans. The Commission is looking at whether the current rules on product liability are fit for purpose for these new technologies. This will sit alongside the broader consultation of the Products Liability Directive that the Commission has launched.  

4. Data portability, interoperability and standards 

At present, there’s no EU-wide framework to ensure that consumers and businesses can take their data from one system to another, or to allow different digital services to easily share data. The Commission plans to work with open source communities to kick-start the process of establishing technical standards to allow portability of machine-generated data and system interoperability. Giving businesses the right to port their machine-generated data would be an extension of the approach taken in the General Data Protection Regulation, which will introduce a portability right for individuals to obtain their personal data and move it to other IT systems. 

The Commission is seeking the views of all interested parties. Submissions will close on 26 April 2017. The consultation is here.