The “Invisible Hand” of Contract Law in the Regulation of the Data Economy.

While many regulatory initiatives in the EU rely mostly on public market regulation (e.g., the DGA, DMA, and Data Act), the Principles for a Data Economy bring the ‘invisible hand’ of private law to the fore. They constitute a form of “transnational private (soft) law”, cover contracts that have data as their object of negotiation and expand the range of entitlements that private parties may enforce vis-a-vis one another. My intervention will focus on the rationales behind a private-law-focused approach and discuss its effectiveness in achieving a fair yet innovation-friendly legal landscape, absent a proper harmonisation of underlying legal frameworks. While the principles rightly acknowledge the importance of contract law as a “legal technology”, my hypothesis is that we need to overcome the illusion of a “neutral” private law and combine the efforts of the ELI/ALI initiatives with a broader commitment to shared regulatory policies at national, regional, and international levels.

Interactions and Tensions between the ELI/ALI Data Principles and European Data Law

Concurrently with the ELI/ALI project crafting “Principles for a Data Economy”, the European Commission has launched a flurry of legislative initiatives designed to reshape the European data economy, including the Data Governance Act (DGA), Digital Markets Act (DMA), and Data Act (DA). The ELI/ALI data principles seek to navigate the evolving regulatory landscape by stating that private arrangements must respect existing and future public data regulation. However, the underlying idea that private and public data regulation can co-exist without interference and tensions is bound to run into difficulties as data escapes legal categories all too easily. My intervention will draw attention towards entanglements and spill-overs of European private-public data law. My hypothesis is that, ultimately, entirely legalistic approaches cannot ensure effective data regulation – more infrastructural approaches are needed instead.

Discussant

Przemek Palka will reflect on the implications for data ownership.

Discussant

Angelina Fisher’s reflections will focus on the commercial exploitation of non-personal data.