In 2021 we expect to see both the European Commission and UK government progress their ambitious plans for a European Data Strategy and National Data Strategy, respectively.
These initiatives were launched in recognition of the importance that data in its all forms plays in industry and innovation, and the benefits that data use can deliver to individuals.
The aims of both Data Strategies are aspirational – they envisage "better" use of data across sectors to boost productivity, trade and employment, drive research and innovation, and empower individuals. They also contemplate greater investment in data infrastructure and skills. Significantly for businesses that collect and rely on data, both Strategies place importance on data being shared and accessible on fair terms.
As these Strategies develop in 2021, we'll begin to see how aspiration will translate into concrete measures and potentially also legislation. Data-driven businesses should carefully monitor these developments and capitalise on opportunities to influence policy-making in this area.
European Data Strategy
The European Commission aims to make Europe the global data hub and a leading data-agile economy. The strategy is broad, reflecting the fact that data is essential to so many different sectors in different ways. It is also complemented by a range of wider industrial strategies, including making "Europe Fit for the Digital Age" which is one of the Commission's six headline ambitions for 2021.
At its heart is the concept of a single EU market for data whereby data can flow throughout the EU and across sectors, with clear and fair rules on access and use and greater investment in infrastructure.
The draft Data Governance Regulation was published on 25 November 2020. It is the first step in delivering the Strategy and is intended to "offer an alternative model to the data-handling practices of the big tech platforms". The Regulation provides for neutral and transparent data-sharing intermediaries who will not be able to deal with the data on their own account. It includes:
- measures to increase trust in data sharing
- EU rules to facilitate use of neutral and trustworthy data intermediaries for data sharing
- measures to facilitate re-use of public sector data, for example health data
- measures to give Europeans more control over the use of their data.
The Commission also comments that the Regulation "supports wider international sharing of data [provided it is] under conditions that ensure compliance with European public interest and the legitimate interests of the data providers".
Further proposals on common data spaces are expected in 2021 and they will be complemented by a European Data Act, due to be published in Q3 of 2021 to foster B2B and B2G data sharing. This Act could provide, among other things, for:
- fostering B2G data sharing in the public interest
- supporting B2B data sharing, including addressing issues around usage rights of co-generated industrial data (like IoT data); this includes clarifying responsible data use rules (like who bears legal liability)
- warranting compulsory access to data, where appropriate, on "FAIR" conditions (fair, transparent, reasonable, proportionate and/or non-discriminatory)
- exploring enhancing the portability right in Article 20 GDPR to give individuals more control over their data, and
- potentially revisiting and clarifying the IP framework surrounding data – namely, the Database Directive and Trade Secrets Directive; in this context, the Commission has already published its IP Action Plan setting out its vision on the role of IP, including better mobilising data protected by IP.
There is also an Implementing Act on the availability (and corresponding re-use) of specific high value public sector data sets in the making (under the Open Data Directive).
The accumulation of data by 'big tech' companies will be addressed more directly, not just as part of the Data Strategy, but in the Digital Services Act package. The President of the European Commission said in her State of the Union Address that "Europe has been too slow and is now dependent on others [in relation to personalised data]. This cannot happen with industrial data". This is why there is a push to set up common European data spaces, to support innovation ecosystems.
As the ongoing global pandemic has (unfortunately) reminded us, there are certain things which can be done only if everybody does it together. The low availability of data for research and innovative uses has brought to the fore underused and timely concepts like "data altruism" where individuals can voluntarily make their data available for the common good. The responses to the Strategy consultation showed there is appetite for it (although, of course, what every citizen will ultimately decide is hard to predict and remains a known unknown).
The Commission is clearly pursuing a number of avenues to ensure that its vision of making the EU "the most attractive, most secure and most dynamic data-agile economy in the world" is achieved. In 2021 (through to 2027) the Commission will invest in a High Impact Project on federated cloud infrastructures and European data spaces.
Much is expected, and we will have to see whether data expectations meet reality in 2021 and the years to come.
UK National Data Strategy
The UK National Data Strategy pursues a number of similar goals to the EU Strategy. However, the government's policy paper expressly refers to the UK taking advantage of its independence post Brexit to boost domestic data strength and influence the global approach to data sharing and use, potentially heralding a departure from EU norms, at least in relation to non-personal data.
The UK strategy covers the whole data value chain, including:
- investment in data skills
- data infrastructure
- better use of data within public bodies and charities
- facilitating cross-border data flows as part of the UK's trade negotiations, and
- data and AI ethics.
For data-driven businesses, some of the key impacts may lie in the government's mission to make data usable, accessible and available across the economy.
The government's policy paper notes that many organisations are limited in their access to data, which may be controlled by a small number of key players, and that much potential lies in linkage and reuse of datasets across organisations and sectors. At the same time, the policy paper acknowledges that government intervention in this regard could have unintended consequences and the benefits of making data widely available must be balanced against the need to maintain commercial incentives to collect and curate data, as well as the rights of individuals.
The government therefore proposes to take an evidence-based approach and will undertake further research to develop its policy in this area. The policy paper contains relatively few concrete proposals and these generally refer to pre-existing initiatives, for example, the work of the Digital Taskforce led by the CMA in relation to digital services providers, the Smart Data initiative that has been used in the banking sector to enable consumer-led data mobility, and the Open Data initiative for public sector data.
The government's consultation on the National Data Strategy, which closes on 9 December 2020, asks a number of questions about the sectors that would most benefit from greater data availability, what the government's role should be in this area, and how barriers faced by SMEs in particular can be tackled. The government's response to the consultation, which also addresses other elements of the National Data Strategy, will likely be published in the new year.
We expect the government's work in framing the UK's data policy to continue through 2021, including formulation of further concrete plans. In the meantime, data-driven businesses have an opportunity to engage with the government to help shape the new policy.
Setting global data standards
It's clear that both the UK and the EU want to facilitate data sharing on a B2G and B2B level while protecting the rights of individuals. They also both envisage establishing the UK and the EU respectively as global data leaders, promoting international cooperation and setting data standards.
This is important for the UK in particular given that it is hoping to forge new trading relationships from its position outside the EU, and the UK policy paper expressly refers to the UK's independence and sovereignty in formulating its data policy. With each trying to export its own data ambitions internationally, 2021 may well be the year we find out to what extent UK and EU policy are able to diverge on a practical level and which will succeed in gaining greater international traction.
Find out more
If you'd like to discuss any of the issues raised in this article in more detail, please reach out to a member of our Technology, Media & Communications team.
