Data is the oil of the digital economy – whether it’s personal data or other sorts of data.
Guarding Your Data – The New Frontier in a Digital-First World
Since the General Data Protection Regulation (GDPR) rolled out last May, everyone’s woke up to the fact that their personal data isn’t just a back‑office issue but a battlefield of rights. Businesses, in turn, have started treating data protection as a non‑negotiable priority—no more treating it like a low‑budget backup system.
Why Data Is Worth More Than It Looks
The Internet of Things is exploding: connected cars, smart fridges, and buzzing sensors everywhere. Add the next‑gen 5G networks, and the amount of data streaming in will be staggering. But remember: most of this data isn’t personal. Still, legal experts are wrestling with a hot question—do we have ownership over data, whether it’s a passport number or a packet of sensor readings? That’s a huge economic puzzle.
How the Law Deals with Information
Under English law, the truth is that you can’t own information itself. Think of a database: the data inside is not “property” in the traditional sense, but the physical hard‑drive it lives on is.
- Physical medium – tangible property you can own outright.
- Intellectual property rights – copyright, database rights, and confidences that can still shield the information.
- No general “owner” of data – everything hinges on how you package, store, or handle it.
The EU has toyed with a “data producer’s right” but that’s still miles away. In the meantime, contracts become the safety net, filling gaps that the law hasn’t carved out yet.
Case Study: The Horse‑Racing Data Drama
Yesterday’s ruling (May, 2024) put a spotlight on whether specific race‑track data could be protected. The plaintiffs tried three angles:
- Copyright – only works that are original literary creations qualify.
- Database rights – a real investment in building and maintaining a protected database is required.
- Confidence – treating the data as trade secrets, protecting it under the law of confidentiality.
The court let the confidence argument win: the pre‑race data had commercial value, and restricting its spread off the track was justified. They dismissed copyright because the data was algorithmically auto‑generated and lacked the creative flair needed for protection. Database rights were ruled non‑infringing as the data use didn’t cross the thresholds necessary.
This case shows that protecting data is a tricky, fact‑driven art. No single legal approach guarantees success; often it’s a patchwork of policies, contracts, and good old‑fashioned safeguards.
Practical Steps for Protecting Your Data
Want to keep your data from becoming a free‑for‑all catalog? Prioritize these areas:
- Trade Secret Policy – Identify the data you’re keen on guarding. Document it, keep it private, and enforce confidentiality clauses in employment and NDA agreements.
- Lock It Down – Hard‑wow! Use robust physical and digital security measures. Deploy role‑based access controls and encryption.
- IP Rights Check – Maintain meticulous records showing how data or databases were created and maintained. Scrutinize contracts with developers to confirm your ownership of copyright and database rights.
- Contractual Safeguards – When you share data with partners or vendors, ensure those agreements spell out the rights you retain and the responsibilities they uphold.
Remember, the law may lag, but you can build a solid defense with thoughtful policy, vigilant security, and strong contracts.
— with a dash of humor, authority, and a keen sense of the evolving data landscape. (Photo by Glenn Carstens‑Peters on Unsplash)