SOCIETY | Jul 8, 2019

Big Data and User Protection: these are the guidelines

AGCOM, Antitrust and the Italian Data Protection Authority have published 11 recommendations to protect the consumer and the market.

The guidelines and policy recommendations on Big Data, published on 2 July, are just a “foretaste” of a fact-finding survey carried out by the AGCOMAntitrust and the Italian Data Protection Authority, launched in May 2017, which will shortly be published in an extended format. The objective of the document is to define an effective public policy for Big Data, drawn up jointly by the three Authorities with different jurisdictions, in order to contribute to a broader reading of the current phenomena of collecting and using data, including by large platforms and therefore by the major players.

“Data availability – we read in the report – is increasingly relevant for optimizing processes and decisions, for innovation and for the efficient operation of markets, and Big Data represent a phenomenon which does not concern specific sectors only, but affects the economy as a whole. The development of data-driven economy has implications not only on market operations and consumer welfare, but also from a social and democratic point of view. These new forms in which market power manifests itself deserve a careful assessment of the economic and social implications they may have”.

This survey, the result of more than forty hearings by the different Authorities, involving the main operators of data economy, telecommunications, the financial and publishing sectors, as well as experts and academics, has led the authorities to define eleven joint policy recommendations and guidelines aimed at protecting individuals, including the one which reiterates the importance of collaboration between AGCOM, AGCM and the Italian Data Protection Authority by establishing a permanent coordination.

The rules

The first recommendation, addressed to the Government and Parliament, concerns the need to promote an appropriate regulatory framework which “addresses the issue of a full and effective transparency in the use of personal information (in relation to individuals and the community)”, and, in view of the collection of data and the algorithmic profiling that this entails “new concentrations of power, not only intended as ‘market power’, but more generally as economic power and power tout court, affecting fundamental rights, competitive profiles, pluralism and the very resilience of democratic systems”.

“Legislative initiatives which ensure that the independent authorities responsible for protecting pluralism should be vested with audit and inspection powers over algorithmic profiling for selecting information and content, as well as in relation to the results of applying the policies and rules which global digital platforms have given themselves concerning the removal of false information or hate speech” would be desirable.

The need to reform the control over concentrations in order to increase the effectiveness of interventions by competition authorities was also highlighted.

Policies

Recommendation number three of the document is to promote a “single, transparent policy concerning the extraction, accessibility and use of public data in order to determine public policies to the benefit of businesses and citizens”. A policy which will necessarily be based on coordination with existing European strategies for creating a digital single market.

Recommendations

In order to safeguard data protection, point six of the list recommends that data controllers who intend to use Big Data should assess whether a user can reasonably be identified thanks to the “anonymized” set of data used during analysis.

Attention also focuses on the issue of awareness, as it is recommended to “reduce information asymmetries between users and digital operators during the data collection phase, as well as between large digital platforms and the other operators which use these platforms”. In a nutshell, this document strongly suggests finding an effective way to make the user understand the relationship between a service (often free) and data transfer, i.e. payment in data.

Point seven of the guidelines underlines the importance of pursuing “the objective of protecting consumer welfare with the help of antitrust law instruments, extending these to the assessment of objectives concerning quality of service, innovation and equity”.

The instruments

Among the instruments suggested in the guidelines, there are those which aim to promote online pluralism, transparency in the choice of contents, as well as users’ awareness concerning the content and information received online.

A focus also on the portability and mobility of data between different platforms, through the adoption of open and interoperable standards which can “favor the development of competition in the various fields of economic exploitation of data and, consequently, a more effective protection of the consumer/user”.

These instruments also include “strengthening the powers of AGCM and AGCOM for acquiring information outside pre-trial proceedings and increasing the maximum penalties in order to ensure an effective deterrent effect of consumer protection rules”.

Last of the instruments, but probably one of the most important and effective, is the one laid down in point two: “to strengthen international cooperation on policy shaping for Big Data governance”Because, where it is true that national rules and policies are important, it is together with other countries that issues such as these can be impacted.

Sonia Montegiove