Legal issues related to Big Data

To identify and understand the legal issues associated with Big Data, it is essential to understand the meaning of the term, “Big data.”

What is Big Data?

“Big data” refers to a collection of data sets whose size is beyond the ability of typical database software tools to capture, store, manage, and analyse. This definition is intentionally subjective and incorporates a moving definition of how big a dataset needs to be in order to be considered big data—i.e., we don’t define big data in terms of being larger than a certain number of terabytes (thousands of gigabytes).

Big Data is a term that describes large volumes of high velocity, complex and variable data that require advanced techniques and technologies to enable the capture, storage, distribution, management, and analysis of the information. Lawyers are frequently occupied in government and industry initiatives dealing with the legal ramifications and regulatory demands of Big Data, including questions of standardization and data management programmes.

Data Ownership

With that access and use of Big Data is proving to be crucial to future business success in many sectors, one of the central questions is whether and to what extent companies can or will claim proprietary rights in Big Data. “Who owns the data?” is an increasingly relevant, yet largely unresolved question, whereas the answer – “no one can own Big Data” may not solve the issue. Can anyone use data that is publicly available, and/or is it possible to claim ownership rights in structured data? Does the answer change for a massive accumulation of data entries, even if it remains largely unstructured? Does the law offer sufficient protection where Big Data is exploited in a proprietary manner? Does the protection under the various trade secrets laws help? Accurate evaluation, protection and ownership identification of data can be crucial in particular in crisis and insolvency situations; evaluating and assessing ownership of data is an essential step for determining the value of a company or of its assets in case of bankruptcy

Open Data & Public Sector

The Open Data association and governments around the world, including the EU, are dedicated to make data publicly available and usable. The EU’s present review of the Public Sector Information Directive aims at unlocking the potential of Big Data held and accumulated by government authorities both with regard to the public sector itself leveraging the potential and efficiencies that come along with a Big Data strategy, as well as to enable innovators and private enterprise to access Big Data held by public authorities. Public entities produce and hold enormous amounts of data which in many cases are sensitive or confidential in nature. Government and public institutions have an intrinsic interest in managing cautiously this large amount of data, both to improve their performance and generate savings that allow for much sought-after spending cuts, but also to be able to provide open data to their citizens and business entities. Big Data management is an important asset for the public sector to better conduct its public mandate as well as distribute knowledge and information to the public, empowering citizens and business with open data and information. We are at the front position of this data revolution and competent of providing strategic advice, both to private and public institutions for the best integration of their data strategies.

Database Licensing

One of the probable forms of legal protection for Big Data is the sui generis database right. Wherever an investment is made into systematically or methodically arranging data (which could include Big Data), a database right may exist which provides legal protection for those that have made that investment to prevent third parties from commercially exploiting and transacting with the Big Data.

Copyright Infringement

Established copyright laws have struggled to deal with new technologies and digital content distribution methods. The new Big Data search and analysis tools that could result in an infringement of the copyright in this data raise further challenges.

Security Breaches

A number of European jurisdictions have implemented set of laws and policies requiring remedial action in case of security breaches, to an extent following the regulations on security breaches as enacted in the United States.

Data Protection

Although Big Data is not restricted to data protection issues in many instances personal data plays no role at all, privacy concerns are however an important factor in any Big Data strategy. The massive amount of sources feeding into Big Data, related issues of data controllership and the applicable law result in regulatory complexities which are not very easy to resolve, including heterogeneous necessities on data security. The controversial areas of user sentiment and social data analysis, cross referencing and mixing of data obtained from diverse sources trigger high demands for a safe and secure legal framework that can protect both data users and suppliers.

Corporate Transactions

A lot of jurisdictions are only now waking up to the fact that their legal systems do not provide adequate guidance on the proper protection of Big Data. In any corporate transaction the accurate assessment and due diligence analysis of proprietary rights in relation to data owned or used by the entities concerned, will become one of the key areas of review. The active growth of Big Data software solutions and architectures is motivating start-ups to seek financing and results in more advanced companies becoming targeted and acquired by large multi-national players. As Big Data is turning into a key asset, it is obvious that data ownership and the right to access databases are required to increasingly be taken into consideration when entering into M&A transactions or selling assets and businesses. The value of an organization could be considerably increased where it’s in reality owns, has access to and is capable of using and analyzing Big Data in observance with the law. On the other hand mismanagement of data can lead to civil and criminal liability as a result of violations of data protection, copyright or property rights.

Big Data & Open Source

A few of the most stable trusted and technologically highly developed Big Data solutions, including Apache Hadoop, are developed and run on the basis of open source software. The open source licensing provisions and limitations raise particular issues around risk and risk assessment for developers, as well as users of such products and solutions.

Standardisation

An intricate worldwide networked environment demands security and interoperability at all levels.  With a holistic approach to information systems, software development and deployment require to meet industry standards for flexibility, reliability and interoperability.

Antitrust

To the extent companies hold Big Data that are vital for the implementation of certain business models they can be confronted with requests to grant third party access to their data. Refusing third party access to such data or discriminating licensees of such data may constitute an illegal abuse of the Big Data holder’s dominant position and could result in civil litigation and significant fines.

Taxation

The evaluation of the ownership, asset value and transactional value of Big Data is yet to be developed within the frame of local taxation regimes. A wide range of tax matters pertaining to Big Data, Data Centre’s and e-commerce, such as VAT, transfer tax, transfer pricing and tax incentives are there.