Open data in the private sector: an unresolved issue?

Open data and information reuse policies have traditionally been associated with public sector entities. It is logical that it should be they who encourage this kind of initiative, insofar as they are financed through public funds, if we also take into account that it is a fundamental consequence of the legislative framework promoted by the European Union and endorsed by Spanish legislation.

One of the main measures which European standards that apply to public sector concerns tend to adopt is the delimitation of its subjective scope, as happens singularly in public procurement, and also as regards the reuse of information. This is intended to clarify which parties are obliged to comply with its forecasts and provide greater legal certainty to their practical application.

This regulatory model has been followed in Spain by the state legislature, which has included within the subjective scope of application of its provisions only entities with public legal personality. Since the reform that took place in 2015 in relation to the legal regime of the public sector, there are private entities "linked to or dependent on the public administration" that, for certain purposes, are subject to the administrative rules. This consequence does not affect regulation on the re-use of information, although they are expressly considered as public sector, albeit institutional, since the entry into force of said legal modification.

Public Private Integration

Apart from the debatable question of the desirability of extending the target parties for rules on reuse, the fact is that nothing prevents open data projects and initiatives from taking a further step along these lines. In this sense, the emergence of the Internet of Things and big data show a paradigm shift based on the permanent and generalized interconnection of devices and sources of information that do not always come from parties belonging to the public sector. In fact, they usually originate in users and other private entities that provide multiple services related to the information and communication society, although not exclusively. Even if, in many cases, they refer to actions and activities that take place in public on the street or using public goods, as is the case with telephone services.

These players are not bound by rules on access and re-use initially designed to be applied in the context of the public sector. However, it would be very useful for infomediaries to be able to integrate the body of data generated by the aforesaid private parties in the treatment they carry out according to open data standards and, in particular, in an automated manner. Difficulties and potential legal barriers may be greater in the private sector, especially if we take into account the reluctance to share information with potential competitors in the same market. This is an important challenge that should lead to the establishment of minimum legal conditions  shared by the various operators and parties involved in order not to miss out on the opportunity offered by public-private integration in this area .

We are faced with an essential legal debate, if we are to take advantage of the potential added value of reuse beyond strict compliance with legal obligations. In particular, if it is hoped to promote better services with a genuine - and differential - added value based on the integration of data from both the public and private sectors. For this, it is necessary to align the opening up of data in the private sector with the policies and initiatives that for years have been promoted for the public sector, and in particular as regards the technical conditions in which data would be accessible. In this challenge, beyond the existing regulatory framework, it is up to the public authorities to lead this necessary commitment by facilitating and promoting not only the openness but also the interconnection of data that are necessary so that useful services can be offered adapted to the needs of the users, regardless of whether they are in the power of a public or private entity.