Public authorities should also provide personal data more freely
Commission makes "data governance" proposal
Dr. S-W – 12/2020
On the 25th November 2020, the EU
Commission presented a proposal for a regulation on "European
data governance", COM(2020) 767 final. The handling of social data
is not in the foreground nor is it directly mentioned. Nevertheless, the law
will also have a direct impact on the social security institutions. This is
because one of the most important objectives from the point of view of social
security is to make data held by public institutions accessible to a wide
circle of potentially interested parties. This is supported by structures to
encourage voluntary "data donation", especially the personal data
from private individuals. Their (re)use should serve "non-profit"
purposes. Finally, the regulation introduces the somewhat unwieldy idea of a
(also commercially acting) "data intermediary", a pseudo data
broker, who would have to strictly separate this transaction from other
deals with protected, mainly non-anonymised, personal data. In this respect,
it supplements the 2019 "Open data" directive that is already in
force but not yet implemented in all of the member states. This only deals
with non-protected, i.e. "open" data. At the same time, it is only
the first of a whole series of EU legislative initiatives already announced
in the European Data Strategy 2020. This includes the establishment of
several vertical European "data governances", starting with the
health sector. Others will follow and they will include the public
administration sector. However, other horizontal acts will also follow, such
as the "Digital services act - Digital markets act package" in
mid-December and the "Data act" in the third quarter of 2021.
Whereas the first package targets market distorting practices, the data act
aims at clarifying the rights of data users (said Thierry Breton at the conference
of telecommunications ministers).
the pillars of the proposed regulation is that disclosure and further use of
public data should, in principle, not be exclusive, i.e. specific to select
recipients. Instead, all interested parties must be considered: developers of
big data and machine learning-based artificial intelligence, product and
service developers in the broadest sense, companies and research
institutions, and most importantly: it is intended to be reused for both
non-commercial and commercial purposes.
pillar is closely related to another: the facilitation of "data
donation" or "data altruism" - i.e. the voluntary provision of
data for the common good. These are big words – in essence, it is probably
more about easing the procedures for data subjects to consent to the transfer
of their data. A yet-to-be-drafted European consent form for data altruism is
expected to help boost donations. This is where the spark of data altruism
will also spread into the public administration sector: It is foreseeable
that public authorities will (have to) automatically present such a
boilerplate declaration to citizens so that they can give their consent, e.g.
by clicking on it. A significantly large potential of data altruism is seen
in the healthcare sectors and better provision of public services, etc.
Video conference of telecommunications ministers
of the delegations expressed agreement during the initial debate at the “Telecom”
council that was held on the 7th December 2020. Cautious criticism was
voiced more in passing. The Commission has been repeatedly reminded of the EU's
international obligations. These are indeed likely to oppose any excessive
European "data protectionism", which repeatedly shines through in the
draft and its explanatory memorandum. The very idea of European data
governances, somehow shielded from the outside world, which are supposed to
give the EU a "competitive advantage", is unlikely to be compatible
with international trade law, said Peter Altmaier. It was also argued that
personal data could be transformed into "open data" by anonymisation
and then shared with third parties under the rules of the "Open data"
directive. One could motivate the data owners (e.g. social security
institutions as well - author's note) in this direction. The primary motive is
probably to "spare" the data subject of having to giving her/his
consent under this procedure. Finally, what precisely is behind the
"general interest" that opens the door to "data altruism"
or "data donation" was also critically questioned. Finally, it was
suggested that financial incentives could also contribute to data sharing.