Big data and the legal framework for data quality

Power has a lot to do with knowledge, access to, and utilization of data. But in the context of the debate about power, the question of data quality is hardly ever raised. This is because legal standards for data quality are lacking. The first attempts to regulate this question can be found hidden in Article 6 of the EU Data Protection Directive and in the regulation on scoring in section 28b of the German Federal Data Protection Act (BDSG). From this, with the help of initial research attempts by computer science and sociology, we can develop a provisional, fragmentary framework for legal standards in data quality, as I will demonstrate in the following 10 theses. K E Y W O R D S : big data, data quality, data protection, EU Regulation, tort law T H E S I L E N C E O F T H E L A M B S : W H Y D O E S R E S E A R C H H A V E N O T H I N G T O S A Y A B O U T D A T A Q U A L I T Y ? Data are the backbone of power. Only someone who knows something and has access to data can control, plan and effect changes. Data are often interpreted as the currency of the digital economy, not without reason. So, it is all the more astonishing that until now there has been hardly any debate about the protection of data quality within the discussion of power and powerlessness. What remains of an organisation’s power such as Google when spectacular big data cases such as their Google Flu Trends turned out to be ex post false? This ignorance is still promoted by articles in the daily press that extol the sloppiness of data research as an actual asset in big data, for example, as here in the Süddeutsche Zeitung. Large amounts of data, dirty data, indicate a trend but do not provide an exact result—in just about all of this, big data methods contradicts the way in which * Professor, ITM, Germany. Email: hoeren@uni-muenster.de 1 For example, X Meng and X Ci, ‘Big Data Management: Concepts, Techniques and Challenges’ (2013) 50 J Comp Res Devel 146. But the debate is different, however, in certain areas such as aeronautical data where the data quality is regulated and standardized extensively. See Annex IV (‘Data quality requirements’) of EU Commission Reg No 73/2010 of 26 January 2010 for the qualitative requirements in aeronautical data and aeronautical information for the entirety of European airspace [2010] OJ L23/6 <http://eur-lex.europa. eu/legal-content/EN/TXT/HTML/? uri1⁄4CELEX:32010R0073&from1⁄4DE> accessed 17 August 2016. 2 D Butler, ‘When Google Got Flu Wrong’ (2013) 494 Nature 155. Equally shocking in this respect is Sharona Hoffman’s empirical study on the deficiencies in data quality in the medical world. S Hoffman, ‘Medical Big Data and Big Data Quality Problems’ (2014) 21 Conn Ins L J 289. VC The Author (2017). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com. 26 International Journal of Law and Information Technology, 2017, 25, 26–37 doi: 10.1093/ijlit/eaw014 Advance Access Publication Date: 8 January 2017 Article statisticians have worked up to now. But if large amounts of data are processed, it is this sheer mass whose analysis ultimately brings one very close to one’s goal. Especially ‘big data’ changes the research structure in scienceand evidence-based decision-making from causation models to correlation paradigms. Data-based research traditionally proceeded from a hypothesis, which was used to understand relations between data and causation. Big data changes this concept by obviating the need for a hypothesis. Instead understanding is gained and knowledge is derived from data patterns. This new data mining technique leads to unknown epistemological consequences for data quality criteria including legal requirements for data quality in civil law or data protection law. Data quality requirements arise and must arise in at least three situations. The first is the question of buying raw data: the buyer’s issue essentially is the protection of the contractually stipulated quality of such data. The second concerns the protection of those who acquire the results of big data research. And finally, it is always about the rights of those who are affected by the assessment results in whatever way outside of contractual relationships, but within the legal protection regime against unfair discrimination. T H E L A W O N W A R R A N T Y I N M O D E R N C O D I F I E D C I V I L L A W I S O U T D A T E D The contractual rules on the protection of data quality are obsolete. They derive from 19th-century commodity-oriented economic structures and safeguard at best exceptionally a liability in contractual or quasi-contractual relationships. Accordingly, the few published opinions on data quality in big data essentially only discuss the liability for transmission errors. The real test on the subject of information liability in the information society is from now on data themselves are being made the subject of contracts. Traditionally, in what was then the only conceivable case of selling information in book form, the law proceeded on the basis that the contractually agreed use was hard to determine. In law, the buyer/reader of a book entertained no expectations of a book’s content that were worthy of protection; such expectations were as a rule only irrelevant desires for information. Boundaries were only overstepped if a larger-than-average number of printing errors were present, pages were missing or a statute book was 3 H Martin-Jung, ‘Warum wir Big Data verstehen müssen’ SZ (10 October 2015). 4 The following ideas are based on the premises of German civil law. However, the legal position in other EU Member States is no better. 5 See C Peschel and S Rockstroh, ‘Big Data in der Industrie Chancen und Risiken neuer datenbasierter Dienste’ (Vol 9 2014) MMR 571. 6 German Federal Supreme Court (Vol 41 1988) NJW 2597ff; also J Wertenbruch, ‘Gew€ahrleistung beim Kauf von Kunstgegenst€anden nach neuem Schuldrecht’ (Vol 28 2004) NJW 1977, 1979ff; H Haberstumpf, ‘Verkauf immaterieller Güter’ (Vol 22 2015) NJOZ 793, 796 maintains that only tangible property can be the starting point for a product purchase. 7 HP Westermann, S€acker/Rixecker/Oetker/Limperg Münchener Kommentar zum Bürgerlichen Gesetzbuch (7th edn, Beck 2015) para 73. 8 German Federal Supreme Court (1958) NJW 138ff. Big data and the legal framework for data quality 27