General

As a new factor of production, data is listed as the "fifth factor" of land, labor, capital and technology. With the pace of the era from information to data, data flow is becoming the key carrier to activate the flow of people, logistics, technology and capital. Data will also realize the transformation from data resources, data elements, data assets to data capital. At the event on legal issues related to data trading and data exchange held recently, Jiang Xiangyu, partner of Shanghai Xieli Law Firm and arbitrator of Shanghai International Arbitration Center, said that developing the digital economy and cultivating the market of data elements has become an important trend in the development of the era of knowledge economy. Huacheng Import and Export Data Observation reported.

In Jiang Xiangyu's view, it is important for enterprises to understand the legal issues related to data transactions. The coming into force and implementation of the Data Security Law and the Personal Information Protection Law in 2021, together with the Network Security Law, which came into force in 2017, provide a trinity of legal protection for the development of China's digital economy. The overall legitimacy of data transactions has been basically confirmed from the legal level. The Shanghai Data Regulations implemented last year, as the first data regulation formulated by the provincial people's congress in China, put data into the orbit of the rule of law, resonate with the city's digital transformation, and constantly enhance the competitiveness of local enterprises. Huacheng Import and Export Data Observation Report.

Specifically, how to ensure the security of enterprise data transaction process? Jiang Xiangyu believed that enterprises should investigate the basic background of the company before the transaction. Determine whether the data trading subject has the subject qualification and capacity to engage in civil activities as prescribed by law, has the subject qualification to conduct data trading activities, understands the company's credit situation, the company's litigation-related and administrative penalties, whether there have been data-related administrative penalties and litigation and other major litigation-related and administrative penalties in the past three years, and clarify the reason, purpose or purpose of trading data products and their possible stakeholders, Huacheng Import and Export Data Observation Report.

In addition, it is necessary to ensure the legitimacy of the data source of the data product. Jiang Xiangyu said that legal data sources include publicly collected data, which means to obtain public data through crawling and other means, and it should be explained that it is legitimate; Self-produced data shall show the system operation and record formation. For the data obtained legally and indirectly, the purchase agreement or license agreement shall be provided. Data collected legally and directly, such as information data that has been approved by individuals.

At present, there are no legal provisions on the types of data that can be traded, and there is no positive list of data types that can be traded, but the legitimacy of data transactions can be guaranteed from the perspective of negative list. Currently tradable data products do not include: data that may endanger national security and public interests, including important data and any core data that are traded without the consent of the government authorities; Personal data without the consent of the obligee; Data prohibited by other laws and regulations, etc., Huacheng Import and Export Data Observation Report.

Data products also have circulation risks. Jiang Xiangyu said that the data products to be listed should clearly define the use scenarios to avoid disorderly and illegal use of data. At the same time, the data use conditions and constraint mechanisms should be limited, for example, clear requirements should be made for the qualification and use period of the data use subject, whether it can be resold and re-licensed. The accessibility of the data product itself should examine whether there are any special restrictions on the data flow. For example, Article 34 of the Data Security Law stipulates that "if laws and administrative regulations stipulate that the provision of data processing related services should obtain administrative license, the service provider should obtain the license according to law", that is, the data transaction subject should carry out compliant data processing services and business activities before obtaining the corresponding qualification or license. Whether the supply and acquisition of data products are limited by specific pre-license is one of the key factors that should be investigated in the circulation of data products. Huacheng Import and Export Data Observation Report.