Can the upcoming Data Act make data empowerment a reality for consumers?

Europe as a data protector and now data innovator

The EU set the global gold standard in data protection with the GDPR. Three years on, several new initiatives show it wants to open up the opportunity to mobilise and get value from data for more people.

The European Strategy for Data, published in February 2020 set out a vision for combining industrial data, public data and personal data to create innovative solutions across crucial areas like mobility and health – all within the confines of strict data protection rules. This closely chimes with Euroconsumers’ My Data is Mine manifesto published back in 2017:

“Data has become an essential resource for economic growth, job creation and societal progress but big data exploitation should not be considered in contradiction with an adequate protection of consumers’ privacy”

However, putting this idea into practice has been challenging. Notwithstanding some initiatives on data empowerment services and concepts like data trusts, personalised permission-based APIs and intermediary services, our digital economy and industry attitudes are still locked into a business-centered, data exploitation model. And the regulatory levers to create innovative and consumer-serving data markets require a delicately balanced
combination of a trustworthy legal framework, consumer empowering tools and
healthy competition.

GDPR data portability and interoperability

The GDPR, primarily a consumer protection instrument, did include some elements to encourage competition and choice through its provisions on data portability (Article 20 GDPR). In theory, this right allows users to transfer their personal data from one company to another. This enables much easier switching between different providers in a way that could push for consumer-friendly innovation and help alternatives grow. In practice though,
the lack of clear rules, formats and technical standards have proved to be major obstacles to easy data transfer.

Additionally, the nature of many online services which rely on the ‘network effect’ of multiple, shared users aren’t so easy to switch out of – you are unlikely to lose contact with a community of friends if you change energy provider, but will be unable to participate in messaging or activities if you leave a social network.

This is why the closely related concept of ‘interoperability’ is so important. This is the ability to exchange data and service functionality across platforms. It has long been used as a remedy for market dominance, for example by enabling people to make landline telephone
calls between different providers. In digital markets, interoperability could allow different systems to communicate with one another, so a FaceTime user could call a Skype user.

It might also make it much easier for consumers to engage trusted intermediaries, like consumer organisations, to manage data on their behalf with public and business organisations. This opens up many options, including a reversal of the current arrangement where consumers’ data is often harvested in opaque ways and they are then bombarded with useless ads and offers, to one where consumers choose exactly what they are in the market for, and receive tangible services that are filtered to match this and reflect the real value of the consumer data shared.

Is the EU Data Act forgetting individual data empowerment?

One of the new acts in development under the European Data Strategy is a new Data Act. Concerned with unlocking data access and mobility, it could mandate business-to-business data sharing, enhance business-to-government data sharing and adapt the intellectual property.

But while the Commission’s broader communications on data discuss consumer empowerment, granular control and even remuneration, there is little to encourage individual participation in the data economy within the objectives of the Data Act.

Making individual’s data rights technically feasible is challenging but a new paper from the Dutch government offers the Commission some suggestions for the Data Act that could strengthen the rights of  individuals and ensure that they can fully participate in the growing data economy including:

• Ensuring individuals can better exercise their right to data portability to stimulate unbundling of services and allow individuals to easily switch between services.
• Ensuring service portability in data-driven markets where vendor lock-in limits competitiveness.
• Ensuring that the use of privately-held data by the public sector to serve the public interest is organised in line with the rights, obligations and interests of all parties involved.
• Further developing a framework for standards that will increase interoperability.

Euroconsumers have already campaigned and called for more empowerment to individuals in the data economy. Our My Data Is Mine Declaration stresses the necessity to place consumers at the center of the digital economy, as drivers of innovation and independent actors.

The Declaration calls for better portability, individual control, enforcement of the value of consumer data and a respectful and cooperative synergy between companies, consumers and other stakeholders to develop the data economy of tomorrow. We will continue to campaign for an innovative, user-centred and empowering connected world across all of the Commission’s data proposals.