Fairness in Market Instrumental Data Governance

Abstract

In the wake of the passing of the GDPR, the EU embarked on an ambitious endeavour to foster data sharing and reuse in the economy. In 2020, the Commission set the regulatory agenda in a full-fledged European Strategy for Data, of which the Data Governance Act and the Data Act stand out as the key legislations. Their intended goal is to incorporate a cross-sectoral architecture of data access and use into data markets. Based on the art 114 TFEU (as opposed to the GDPR, which is grounded in art 16 TFEU), the Data Strategy and its related legislation mark a clear shift towards internal market integration, while departing from a purely fundamental rights dimension. Thus conceptualised, the new legislative framework can be referred to as ‘market instrumental data governance’. Many of the legislative passages conjure the idea of ‘fair’ data markets. ‘Fairness’, despite its intuitive allure, is not altogether clear in terms of its role, nature, functions, and implications for the regulatory framework. The ambiguity may nonetheless trigger prescriptive dynamics that may variously creep into the legislations.
The paper appraises market instrumental data governance as a novel dimension of regulating data in the EU, and examines how ‘fairness’ comes into play as its core principle. First, it shows that, whereas the Data Strategy and related legislation emphasise the market dimensions, what ‘fairness’ means for market instrumental data governance is not altogether clear. Next, it traces how fairness has evolved as a legal principle in adjacent bodies (ie data protection and platform law), unveiling its nature, functions and content for market instrumental data governance. Here fairness embodies a principle of substantive justice, particularly evident in concerns on unequal data transactions (commutative justice) and, to a lesser extent, on the uneven distribution of data access and use in society (distributive justice). Normativity furnishes yet another level of complexity. In fact, the meaning of fairness depends on how its justice-related features are normatively conceptualised. The paper thus moves on to scrutinising the contending readings of fairness variously emerging from market instrumental data governance. Four perspectives arise: the welfarist approach, the liberal perfectionist one, the political liberal one, and ‘fairness’ as ‘equality of means and outcomes’. It is ultimately shown that market instrumental data governance and related interpretive and adjudicative practices have the potential to reflect this wealth of understandings, paving the way towards diverse patterns of data access and use in data markets.

Keywords: fairness, data governance, data access, market instrumentalism, Data Strategy, justice, normative approaches to data governance

JEL Classification: K00