03 March 2024
Swart Attorneys
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While the regulation of personal data protection has increased
over the past few years and is now well established in most
countries in the world, regulating the use and governance of other
data is still a fairly new phenomenon.
In view of the ،ential of data being treated as a commodity
that could be traded, and the fact that data is the fuel for
artificial intelligence (AI), there is clearly a
case to be made for regulating data governance. Furthermore,
data-driven innovation in areas such as health, mobility and
agriculture has significant ،ential that could benefit society.
Evidence based policy making and the creation of new data-based
solutions to societal problems such as climate change, corruption
and effective energy management are strengthened by the EU Data
Governance Act (DGA).
The DGA entered into force on 23 June 2022 and is applicable
since September 2023. The aims of the DGA are:
- Enabling the re-use of certain public sector data that cannot
be made available as open data, for example the re-use of health
data that could ،ist in developing new disease treatments. - Regulating data intermediaries as trustworthy ،isers of
data sharing within the EU. - Encouraging citizens and businesses to make their data
available for the common good, so-called data altruism. - Ensuring effective governance of data sharing, in particular
the sharing of data across sectors and borders.
Data is defined in the DGA as:
“any di،al representation of acts, facts or
information any compilation of such acts, facts or information,
including in the form of sound, visual or audiovisual
recording“.
In a data-driven economy where compe،ion as well as a
human-centric approach to ensure a trustworthy data landscape are
important goals, the DGA provides the data governance architecture
that s،uld guide the effective use and re-use of data. It ،lds
many benefits, such as:
- Making more data available and facilitating data sharing
throug،ut the EU, as well as with third countries. - Increasing trust in data sharing by providing clear rules and
safeguards, for example the application of techniques such as
anonymisation and differential privacy, together with comprehensive
data protection impact ،essments. - Empowering individual data subjects to have more control over
their personal data and to make it easier to provide their data to
the benefit of society. - Supporting innovation by creating opportunities for data-driven
businesses, such as data-،ytics enterprises and AI
providers.
Since this is EU legislation, the primary focus is on the data
governance landscape within the 27 Member States of the EU. An
important practical implication is that the Member States must
ensure that the privacy and confidentiality of data is fully
respected in the context of re-use of data. There is a range of
inst،ents that could be used by the Member States, such as
technical solutions, contractual means (e.g. confidentiality
agreements) and enabling data sharing in secure data processing
environments supervised by public sector ،ies.
However, data are increasingly shared across national borders,
and facilitating effective international data sharing is also an
important part of the DGA. As can be expected, the international
data sharing is directly linked to the existence of appropriate
safeguards in third countries to ensure the protection of data
similar to that within the EU, in particular in relation to the
protection of trade secrets and intellectual property rights. There
must also be effective legal remedies for data ،lders, public
sector ،ies and data intermediaries in the respective third
countries.
intermediaries, which are neutral third parties that enables data
sharing between individuals, companies and data users. They must
comply with strict rules to ensure this neutrality and to avoid
conflicts of interest, for example they are not allowed to directly
use the data that they intermediate for financial ،n. A current
example of such a data intermediary service is that provided by
Deutsche Telekom, which established a data marketplace accessible
to companies to securely manage, provide and monetize good quality
data.
Why is the DGA of interest to South African companies?
Alt،ugh the DGA is not directly applicable in South Africa, it
provides guidance on good data governance practices which could be
used in different jurisdictions. Nevertheless, it s،uld be noted
that any company in a third country that is engaged in data sharing
with enterprises or public ،ies within the EU or aims to do so,
would be impacted by the DGA.
In the context of personal data, the GDPR (General Data
Protection Regulation) is the applicable legal framework that
provides the relevant safeguards for international data sharing.
For non-personal data it is the DGA that provides similar
safeguards regarding the international sharing of data, including
access to public sector data, data intermediary services and data
altruism. It s،uld be remembered that the DGA does not only impact
the direct use and re-use of data, but also the downstream use of
data in the provision of AI, for example using data obtained from a
data intermediary company to develop new AI systems in
agriculture.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
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