Digitalisation is fundamentally changing business models: data is becoming an asset, products are becoming services, and platforms are becoming marketplaces. However, technological developments are also increasing the legal requirements for companies.
At the Lunch & Law event on 28 June 2018 in Winterthur, Probst Partner AG highlighted the legal issues that entrepreneurs need to pay particular attention to in the course of digitalisation.
Data is an asset – but not property
Unlike physical goods, data is not property in the traditional sense. Protection does not come from property rights, but from control:
- Restrict access
- Regulate the data lifecycle (collection, use, deletion)
- Contractual protection
- Technical protection measures (e.g. access restrictions, DRM)
The aim is not to hand over data, but to control its use. As Facebook states: you don’t sell data – you sell access and placements.
From product to service
Instead of selling products, companies are increasingly selling rights of use:
- Purchase becomes licence
- Ownership becomes access
- Traditional sales contracts become terms of use
Issues of liability, term, maintenance, termination and availability must be redefined – in a legally sound and economically realistic manner.
Platforms: clearly separating roles
Digital platforms bring new liability risks. The key questions are:
- Who is the platform?
- Who is the provider?
- Who is the contractual partner?
Liability pitfalls can only be avoided if roles and contracts are clearly separated.
Conclusion
Digitalisation is not only a technical challenge, but also a legal one. Those who fail to secure their data, contracts and business models risk economic losses and legal disputes. Responsibility, data control and contractual clarity are the keys to legally compliant digitalisation.
The presentation for the event can be viewed here.
