Pinsent Masons reveals key legal considerations for data-trusts

The findings from The Open Data Institute’s (ODI) and Government Office for AI’s (OAI)  ground-breaking data-trust pilots were released at an event attended by Head of the UK Government Office for Artificial Intelligence (AI), Sana Khareghani and Theo Blackwell, London’s Chief Digital Officer.

As the leading law firm on two of the three pilots, Pinsent Masons has assessed the legal and governance considerations for data-trusts and released the findings in a joint report with BPE Solicitors LLP and Queen Mary University of London. Pinsent Masons also wrote the legal and governance findings on the two pilots on which it advised.

The research programme was launched in January 2019 with the long-term aim that the findings would enable organisations to harness the power of data sharing in order to tackle major global challenges. The programme consisted of three pilots:

• Pilot 1: The ODI worked with WILDLABS to explore whether a data trust model could make video and audio captured in wildlife settings and at border controls more accessible, with the long term goal of using the data to reduce illegal trade of wildlife – Pinsent Masons were the lead law firm
• Pilot 2: The ODI and OAI to examine whether data trusts could help reduce food waste – Pinsent Masons were the lead law firm
• Pilot 3: The Royal Borough of Greenwich and Greater London Authority explored whether data trusts enabling access to information such as energy consumption data, data about parking space occupancy and on the availability of charging bays for electric vehicles could improve public services – BPE Solicitors LLP were the lead law firm

Key findings from the research found that:

• Data trusts can give individuals and smaller organisations greater ‘say’ over how data is managed than they would in other relationships with larger organisations, especially when the data is about them or its use affects them. This is a responsibility of the data trustees.
• There may be circumstances where governmental or philanthropic organisations should mandate or fund data trusts for specific global, national or local challenges. Scenarios benefiting from data trusts could include work on climate change; UN sustainable development goals; or understanding the impact of online advertising, as examples.
• A 'one-size fits all' approach does not work. Each data trust needs to reflect its particular circumstance and risk but the multidisciplinary network which is now emerging around data trusts will make it easier for organisations to create a data trust.

Chris Martin, partner and data technology law expert at Pinsent Masons commented: "It has been fantastic to work on such an important programme. The work that has been carried out is a significant step in helping business, government and society look at how they utilise and share data to tackle major challenges. Creating appropriate legal frameworks is a critical element in progressing this.

"Our involvement has enabled us to draw on work that we did in 2018 through our Data Trust Working Group and apply the expertise of our lawyers to look at how a legal framework can be created around data trusts.

"There are a plethora of legal considerations including considering appropriate corporate structures, data protection issues, intellectual property rights and competition law. As the lead law firm across two of the pilots, we were able to explore the diverse legal and governance challenges arising.

"The legal report found that each data trust needs bespoke structures and rules to meet the differing aims that each trust has. We clearly saw this across the food waste and illegal trade of wildlife pilots, with each having different aims, scale and stakeholders. It is key that there are robust governance processes around data-trusts that strike  a balance between accountability to users with effective, timely decision-making."

Jeni Tennison, CEO at ODI said: "We only unlock the full value of data when it gets used, so we really need to find good ways to share data more widely without putting people at risk. We have learnt a huge amount from our research about how data trusts can help, and are very grateful to everyone who worked on the pilots with us, but there is more to do. We need to understand more about how data trusts should be monitored, audited and regulated so we can trust them. We need more pilots, such as the wildlife pilot, to be funded to move into the next phase. We also need more research into other data access models such as data cooperatives, data commons and people-led data trusts which may sometimes be more appropriate."