Flows of information and data: the ocean of possibilities or ghost-nets of regulation?

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Information and data rank high among the most valuable digital resources. Freedom of information is at the heart of freedom of expression as a human right and free flow of data or information has been advanced as the so called 5th freedom of the EU single market. Therefore, EU advances the regulation for Europe’s Digital Decade. We face, however, the danger that regulations in EU end up being ghost-nets: meant to ‘fish for opportunities’, but eventually useless and forgotten.

With this post we invite the discussion on the dilemmas EU has to deal with to effectively regulate, or to decide not to regulate, the digital resources and infrastructure. The ideas we want to discuss are inspired by our work at the Jean Monnet Chair Digital Single Market and the Free Flow of Information [digINFLow]. We start with the very basic inquiry as to how fundamental rights on the one hand, and fundamental market principles on the other, mark the routes for a regulatory approach to digital resources.

European Single Market in digital era

Market rules are the starting point for the discussion from the EU perspective. The single market, built gradually since the beginning of European integration, turned out to be a success even as it faces a crisis after crisis: Brexit, pandemic, or war in the Ukraine. Single market rules are simple by definition: free movement, no borders and no discrimination. As technologies became the game changer for innovation, the concept of the single market expanded to the digital realm. In the virtual reality, information should be easily accessible for citizens seeking mobility opportunities, business would maximize the opportunities for e-commerce beyond borders, with a seemingly endless potential for promotion, and technology should prompt innovative products and services driving the economic growth.

Digital Single Market Strategy of 2015 envisaged an environment where individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality or place of residence. The vision of nearly endless opportunities is, as we can see, tempered with the need for protection of the weaker party: consumer or an individual whose data is being traded. EU has for long recognized the value of information, as in the central idea of ‘information society’ underlying, for example, modern copyright legislation, or as a part of the notion of knowledge-driven economy. More recently, EU has acknowledged the central importance of data-driven innovation, recognizing the role of individuals generating ever-increasing amounts of data, with data at the heart of digital transformation of economy and society.

‘Classic’ rights and freedoms in the modern digital environment

Regulatory answers to these economic and social phenomena are based on the same legal grounds as developed for the internal market in the times of ‘Cassis de Dijon’. The major objectives are the establishment and functioning of the internal market, and making it easier to take up and pursue economic activity for self-employed persons. Modern digital single market law requires a novel approach. As indicated above, it needs to fully integrate EU fundamental values. EU constitutional values are embraced and operationalized by the Charter of Fundamental Rights. The Charter offers a complete framework for balancing different values: freedom to seek employment and to work, freedom to hold opinions, to receive and impart information and ideas regardless of frontiers, freedom to conduct business, to exercise the right of establishment and to provide services in any Member State, and right to privacy and the protection of personal data.

If the Charter is a part of our map for a digital environment, we still need a compass to follow the right route. European Declaration of Rights and Principles for the Digital Decade may serve as one. Its objective is to declare how EU values and principles should apply in the digital environment. The Declaration, broken into six principles, starts with Putting People at the Center of Digital Transformation. This principle directs lawmakers at ensuring that technology benefits all and empowers people, while respect for fundamental rights remains intact.

Without aiming at questioning this goal, one needs, however, to reflect on imminent conflicts that arise in this normative context: the conflict between opening and enabling flows and protecting EU values and individuals, as, for example, in the case of datasets that include personal data; or the clash between fostering innovation and access to digital resources, and control vested in rightholders over intellectual assets. At this point, broad guarantees from the Charter and Declaration need to be contrasted with real life technology use and business strategies.

Law shaping technology or technology shaping law?

Can we solve these conflicts with the recognition of free flow of data or information as the 5th market freedom? Would the result be to rank data and information flows higher than protection of certain values, such as the principle of protection of intellectual property from the Charter of Fundamental Rights? Unfortunately, this would be a gross oversimplification. I answer these questions in an article on “The quest for fifth freedom: access to data and information in conflict with the protection of intellectual property”. I argue that there is no need to distinguish the “fifth” market freedom in the area of data and information flows. Rather than focusing on seemingly useless re-ranking of principles, we’d better focus first on the holistic approach to the regulation of digital resources.

Studying two different examples of harmonization addressing data as information generated by humans (such as research data) and data generated by the machines (such as IoT data), brings me to the conclusion that in both cases we encounter the same set of problems, starting with differentiation of information, data and content. Think of the definition of “data” as undermining the recently born EU data law: ‘data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording. Despite all efforts, it indicates the conundrum of content, information and data. As we are struggling to define these ‘building blocks’ for the digital market, we need to accept that we are unable to separate these concepts in a way that would allow us to regulate data, information and content in a ‘silos’ style of formally distinct regulations. We need a holistic approach, mindful of existing harmonization level, to interpret and apply balanced legal solutions. Otherwise, an ambitious regulatory goal may end up as a ghost- net, bringing more harm than good.

EU is gradually building a legal framework to guarantee basic market freedoms and freedom to receive and impart information based on the human-centric approach while safeguarding users’ rights. What really enables flows and access to data and information, are, however, technologies offered to end users in the form of different services. The real question is, then, whether the law is able to impact technological design to find an optimum balance between freedom of information and protection of the fundamental rights of users?

Answers on how to navigate the regulatory approach that ensures access and flows of information and data, minding the key relevance of technologies, demand a detailed expert discussion, for which this post is just an opening.

Written by profesor at Adam Mickiewicz University Katarzyna Klafkowska-Waśniowska