19 July, 2022
Joint ETNO and GSMA position on the EC proposal for a Data Act
ETNO and the GSMA, who represent the telecoms sector in Europe and worldwide, welcome the Data Act proposal of the European Commission.
We support the objective of fostering data sharing and re-use across sectors and national borders in the single market that underlies the proposed Data Act. However, as the European Commission states in the proposal, that should not be detrimental to innovation, competition and incentives to invest in ways of generating value through data.
ETNO and the GSMA would like to suggest some improvements that are necessary for the regulation to meet its objectives and bring real value with benefits for EU citizens, companies and public administrations.
Please find below a summary of the main issues we would like to raise in the context of this consultation:
B2C and B2B data sharing
- Concepts such as ‘product’ and ‘related services’ need to be more precisely defined. IT devices like smartphones and personal computers should clearly fall outside the definition of ‘product’. The definition of ‘related services’ should be addressed to services that are directly related to the product offering and the functionalities of the product itself, whereas electronic communication services (ECS) and the data generated by them should be excluded as they are used in the management and operation of the underlying connectivity.
- The proposed Regulation should distinguish between users’ own data, and additional proprietary data insights that the data holder may invest in generating and, therefore, be entitled to a fair and reasonable remuneration for such data.
- The provisions on the sharing of data along the value chain of the IoT may need to be adapted to consider the specificities of different sectors and the need to protect Intellectual Property Rights such as trade secrets. A clarification of the practicalities of implementing data sharing, most notably regarding the need to protect personal data, is also needed.
Data processing services
- We support the propositions regarding switching and interoperability, but caution that the implementation of these provisions should be technically feasible.
- A contractual requirement imposing a maximum notice period of 30 calendar days for terminating a contract could be challenging for more complex or customized cloud projects. Contracting parties should be able to choose a longer notice period.
- The Data Act should be more precise regarding the charges in scope to avoid unintended effects on third party service providers.
- The obligations of the different actors involved in the data processing service value chain should be clarified, considering the different business models for the provision of the service (i.e. managed services, pure resale, or cloud broker) so that the responsibility along the value chain be correctly allocated. The party that has the contractual relationship with the customer and the provider of the technology in use do not always correspond. Switching should be the responsibility of the party that operates the underlying technology.
B2G data sharing
- It is necessary for the driving principles of B2G data sharing outlined in the Data Act to set the right incentives for a sustainable cooperation, including through fair and reasonable compensation for data supplied to public bodies.
- Voluntary cooperation should continue to be the default route for governments to obtain data from private companies, and therefore the Data Act must be more precise when it comes to the definition of the exception from this rule. The text should more clearly delineate the types of situations that would constitute a ‘public emergency’.
- Only where there is a clear market failure that justifies regulatory intervention, mandated B2G data access should be considered as a measure of last resort and for a strictly circumscribed set of ‘exceptional needs’, to avoid crowding-out the innovative solutions available in the market.
- The requirement to provide data ‘without undue delay’ is very concerning, and should be adjusted to allow for an ambitious yet realistic timeframe that acknowledges both the public interest to be able to respond quickly to an emergency and the time needed for a private company to respond to the request.
- We welcome the Regulation’s approach to account for compensation with ‘reasonable margin’ and we believe that a compensation of costs also during public emergencies would be appropriate.]
Read the whole document at the link below. For questions and clarifications regarding this paper, please contact Paolo Grassia, Director of Public Policy (firstname.lastname@example.org).