The Data Security Law was announced on June 10 and came into force on September 1. The Personal Information Protection Law was promulgated on August 20 and put into force on November 1. The intensive promulgation of these laws shows that China is strengthening legislation on personal information protection and data security. On the one hand, it strengthens personal information protection and data security; on the other hand, it boosts the use of data and information.
Legislation has created a good external environment for the development of digital economy, but its internal problem lies in data right confirmation. The core issue is whom the data generated by users on platforms belongs to, platforms or users. The separation of two rights should be applied to data elements and marketization, the core of which is how to allocate the data ownership to platforms and users. While platforms are able to help users keep data such as browsing history, it does not mean that platforms take ownership. The basic philosophy is to make users as the developer of data who generates data and enjoys ownership, but such ownership is a kind of weak ownership. Platforms get a usufruct, i.e. the right to use profit, based on its capital, technology, and labor inputs. The arrangement for usufruct can well protect platforms’ rights and interests of commercial data and facilitate businesses to continuously increase investment and encourage innovation. Therefore, right allocation aims to not only promote transactions or become the precondition of data flow and utilization, but also encourage enterprises’ innovation and investment.
Amid the rapid development of digital economy, there have been the abuse of platform management authority, the abuse of data control and capital acquisition on Internet platforms, attracting attention of all countries in the world.
As far as data monopoly is concerned, there are four implications as follows: First, the size of data possessed will become an important standard to measure if in a dominant market position, and data, as an important factor, will be considered for anti-monopoly; Second, public attributes will come into being when data aggregated comes to a huge size, and in this context the act of data use should not only help innovation and development of enterprises, but also safeguard public interests of the society; Third, the acts of data sharing and data expansion of large Internet platforms should be reasonably restricted to avoid some damage to the protection of personal information and market competition in the process of data flow; Fourth, the future development of SMEs and start-ups requires an environment of fair access to data, and large platforms should provide necessary support for data access. The necessary support certainly does not mean free access to data. Data should be used in a fair, reasonable and nondiscriminatory manner to facilitate open data.
A personalized recommendation is not a bad thing in the future platform governance. The key is that such a personalized recommendation and open data should not be on the premise of sacrificing data innovation. Data acquisition in a reasonable manner will help to make data affordable, realize nondiscriminatory access to data and achieve rapid, stable and healthy development and prosperity of the digital economy.
Issued on Nov. 18,2021
Shen Weixing, dean of School of Law, Tsinghua University