Pavel Borzykh, ‘Concept of Personal Data in Social Media Environment: Effect of General Data Protection Regulation and Trade Secrets Directive’

The worldwide popularity of social media has resulted in accumulation of big data volumes by social platforms. Attempting to increase attractiveness of their services, social media deploy special marketing tools which comprise statistical data on users, their interests, customer behavior, etc. Thus, personal data become a part of business information which is used for income generation. On the one hand, such information may be obviously treated as trade secret, on the other hand, the same information comprises user’s personal data.

Modern trends dictate that the personal data may be the object of legal ownership but also of the misappropriation and thefts, therefore they may be evaluated as a private property since they have its features and qualities, although this implies the development of new legal instruments to regulate the problem in question. At the same time the existing legal framework does not recognize the concept of personal data ownership. In a situation, when the rights are not defined or ‘ill defined’ they become allocated to the most powerful parties – social media, which acquire these rights to benefit from the ability to exclude others.

The paper focuses on the concept of personal data ‘ownership’, considers the current situation, evaluates different approaches for granting ‘ownership’ rights and discusses the questions of who could be recognized as an ‘owner’ of personal data subject to processing by social media. The thesis also discusses the challenges and obstacles, which rise from a theoretical decision to grant ownership to data subjects. Among such challenges the paper examines freedom of expression, the power of social media, the existing legal instruments, the problem of determining the value of personal data. The result suggests that a data subject is one who requires additional protection, which may be granted in the form of ownership and property rights related to the concept of ownership. Also, the paper proposes that a possible solution would be to establish a sui generis right, which would constitute a combination of ownership of personal data strongly linked to an individual, the sole right to exclude others and the opportunity to enjoy property rights even after the rights to use personal data are transferred to other parties or ‘rented’ by them.

Borzykh, Pavel, Concept of Personal Data in Social Media Environment: Effect of General Data Protection Regulation and Trade Secrets Directive (August 23, 2021).

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