legal issues in big data

@BYTE_EU www.byte-project.eu

BYTE: Legal Issues in Big DataHans Lammerant – VUB

Big data roadmap and cross-disciplinary community for

addressing societal externalities


Overview• Intellectual Property Rights• Contract law and licensing• Privacy and Data Protection• Due Process• Liability• Jurisdictional Problems


Intellectual Property RightsRelevant forms of IPR:• Copyright on data• Copyright on database• Sui generis database

Issues:• high transaction costs due to rights clearing• is IPR too restrictive due to overprotection?• outdated system of exemptions


Contract law and licensingIPR is default framework → deviation is possible through contractsLicenses as authorisations ↔ licenses as contracts

Issues:• Fragmentation of contract law over jurisdictions → legal interoperability• Enforceability of 'clickwrap'-licenses


Privacy and Data ProtectionIssues:• Definitions of personal data, anonymous and pseudonymous data• Data protection principles (e.g. purpose limitation, data minimization)• Consent• Implementation rights of data subjects: transparency, access and rectification

General discussion: is data protection framework still compatible with big data or do we need a new, risk-based approach


Due Process• Decision making based on big data → can people contest decisions or their grounds?• Certain decisions are not allowed: e.g. non-discrimination legislation → How to check?• Procedural safeguards: transparency is key element, not just of personal data but also of logic.

This logic must be open for auditing and testing.• Implementation: from consent-based model to protection by supervisory authorities?


Liability• Data protection in directive 95/46: data controller ↔ data processor => implies that data

processor knows he is dealing with personal data• e-commerce: limited liability for internet intermediaries / e-privacy → black box-approach:

intermediary is considered not to know what he transfer or stores, and has no liability for content except when he knows.

Cloud computing: technical convergence and reordering of services blurs border between these models → where do we shift?


Jurisdictional ProblemsLarge-scale combining of data sources + technical convergence of services: a wide range of jurisdictions can become involved'Light' application mechanisms → nothing escapes, but inflation of applicable laws

Main solution: harmonisation

legal issues in big data

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