Taken from”The Legal Newspaper”, the legal information newspaper of the Wolters Kluwer Italia group and edited by Cedam, Utet Giuridica, Leggi d'Italia and Ipsoa.

Intro

Contemporary society today is experiencing the era of datatification: a process that transforms various aspects of social life or individual life into data that is subsequently transformed into information equipped with new forms of value.

Some economic actors, often born in this paradigm, have been particularly efficient in developing models of economic exploitation of all this information. The main business model that emerged was based on the massive collection of data, especially personal data, and their subsequent reprocessing. The information collected and the result of its processing have become both the product and the means of production, to be kept secret. The asymmetry in information has determined the asymmetry in power, leading to a digital market whose access is severely limited by absurd barriers to entry and dominated by a few known oligarchs.

In the face of such a model, where power is proportional to the quantity and quality of information held exclusively, this contribution intends to highlight the emergence of the figure ofdata broker (Data Intermediary). A figure who, against the trend, demonstrates how it is possible to create business models in the data market where sharing creates value and that, from a broader social perspective, know how to give justice to the popular Anglo-Saxon expression “Sharing is caring”.

Fundamental elements

The data intermediary It does not yet have an unambiguous definition. The term 'data intermediary', in fact, can encompass a plurality of subcategories. A common and minimal element is his acting as a mediator between those who wish to make their data available and those who would like to exploit it.

Data intermediaries are part of an ecosystem composed of the intermediaries themselves and two stakeholders: data providers (individuals, companies or PAs that make their data available), and those who are interested in using (processing) the data provided, such as Start Up and SMES but also research centers and institutions.

The intermediary works to govern the data in specific ways and provides a certain degree of confidence in how that data will be used. Summarizing and trying to type the multiple possible services, data brokers can offer:

1. Intermediation services between data holders and potential users as well as the possible provision of means for the use or processing of such data (e.g. algorithms);

2. Intermediation services between those interested in the processing and subjects interested in their personal data (e.g. PIMS, see table below);

3. Cooperation services between interested parties and companies interested in sharing with a view to creating common data spaces and data lakes.

Transversely to all these services, the determination of the terms and conditions regarding the processing of the exchanged data may be included.

In the table below the typing of some intermediary data models according to their function developed by the”Centre for Data Ethics and Innovation” in the UK.

Typology

features

Data trusts

They provide fiduciary data management on behalf of data subjects.

Data exchanges

They operate as online data platforms where you can advertise and access data sets, for commercial or non-profit purposes.

Personal Information Management Systems (PIMS)

They seek to give data subjects greater control over their personal data.

Industrial data platforms

They provide a shared infrastructure to facilitate the secure sharing of data and analysis between businesses.

Data Custodians

They allow the analysis to protect privacy or the control of the attributes of confidential data, for example through the application of PET (Privacy Enhancing Technologies).

Data Cooperatives

They allow the sharing of data spaces controlled by the interested parties.

Trusted third parties

They guarantee to those who want access to confidential data sets that the data is suitable for the purpose (for example, in terms of quality or ethical standards).

As for the type of data, the brokerage service may concern:

1. non-personal data, such as those of a commercial or business nature;

2. personal, common or special data pursuant to the GDPR, considering that the intermediary itself can also offer the service of transforming such information into non-personal data through anonymization or synthesis processes.

Trust and advantages in using data intermediaries

Among the objectives common to the various types of intermediation, central is that the data is shared and used only in an agreed manner. In other words, trust in the data brokerage system is central.

This would be obtainable through the joint use of legal and technological elements. Legal mechanisms include fiduciary duties on the one hand (intermediaries must be legally obliged to act in the best interest of the supplier), and contractual mechanisms on the other (with the aim of creating environments in which data is managed according to agreed terms and in a controlled manner). As for technological mechanisms, the use, for example, of technologies based on distributed registries can allow stakeholders to securely manage, monitor and control the access, use, sharing or storage of data.

The development of the figure of the data intermediary is likely to generate multiple positive externalities, and fuel fairer competition in the digital market. There can be many advantages in using this figure. Just by way of example, the use of a data broker can make it possible to:

● fill the 'trust deficit' in the data sharing chain (more data exchanged and greater reliability of the information shared);

● reduce 'privacy fatigue' by outsourcing decisions on the use and exchange of their data;

● strengthen the bargaining power of stakeholders and protect the interests and rights of data providers;

● rebalance power asymmetries in data exchanges, encouraging and empowering data providers to play an active role in defining the terms of data use;

● support interested parties in the management of their personal data, including the management of consent, and in the exercise of their rights;

● allow the sharing of data for special purposes, such as for research purposes, investigative journalism or for the wider public interest;

● allow the sharing of public data made available by governments, where the intermediary facilitates companies' access to such data.

Conclusions

Although recently the European legislator has explicitly referred to the figure of the data intermediary in regulations Data Governance Act (Recitals 22 and 23) and Data Act (considering 35 and 87), and you implicitly count it as one of the means to proceed with the implementation of the so-called. European Data Strategy, whose central objective is the democratization of the digital market, many points still remain debated. A first and most important is the difficult relationship between the intermediation of personal data and the limits set by the GDPR.

At least in perspective, however, the implementation and use of this figure represents an opportunity for those who will be able to seize it and could push many start-ups and SMEs to create new business models that, in continuity with respect to the recent past, are no longer based on the principle of excluding third parties from accessing information assets, but which on the contrary leverage the creation of value through sharing.

In other words, this figure could represent an opportunity to better respond to today's most pressing social, economic and environmental challenges, for which greater access and sharing of data is essential.

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