Users of online services generate mountains of data every day. The question of who owns that data has returned to the spotlight this week after two of China’s social media giants – TikTok owner ByteDance and WeChat owner Tencent Holdings – became locked in a legal fight over alleged monopolistic practices. It comes on the heels of an announcement by the country’s central government planners, calling for the establishment of a nationwide market for trading data.
ByteDance, which accuses Tencent of blocking links to Douyin on WeChat and QQ, argued that users are the owners of the data they create. In a statement issued on Tuesday, ByteDance said “users have the absolute right to control their own data, which should override the platform’s rights ... User data shouldn’t be Tencent’s ‘private possession’.”
Experts, however, are split on the issue.
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“Data belongs to both the users and the platform. Raw data comes from the users, but the platform processes them,” said Yang Dong, director of the Research Centre of Finance Technology and Cyber Security at Renmin University of China.
You Yunting, senior partner at DeBund Law Offices in Shanghai, agreed that both users and Tencent have rights to the data. “Tencent obtains user data with consent.”
Others said the issue is more nuanced.
There are two types of user data: ones that can identify individual users versus those without identifiable information, said Jin Zhenhua, senior partner at Hansheng Law Offices in Shanghai.
“The first type falls under the category of personal information protection, which is covered by the Civil Code... and the draft law of personal information protection that is still pending public opinion,’ he said.
“But the second type, as it can’t identify a person, doesn’t involve personal information protection. They should belong to the platform that invests in technology and labour to process and manage the data.”
In the dispute between ByteDance and Tencent, the main question is whether a user’s profile picture and nickname, along with other user information, can be used to identify a person in real life, said Jin. “If the data can identify a person in real life, then it should not belong as commercial assets to the platforms [such as Tencent],” he said.
Tencent did not respond to our questions about the ownership of user-generated data on WeChat.
The company, however, has vowed to countersue ByteDance. It also accused ByteDance’s products, including Douyin, of obtaining WeChat users’ data through unfair competition, citing a court case in 2019 suggesting that Tencent has ownership over some WeChat user data.
At the time, a court in the city of Tianjin found that Douyin shared user data obtained from WeChat with another ByteDance app, the Snapchat-like Duoshan. Douyin also used the data to recommend friends to new users. Although Tencent did authorise Douyin to let users sign up for an account via WeChat, Douyin did not have permission to use the WeChat data for other purposes. The court therefore asked Douyin to stop its behaviour.
“WeChat and QQ have a high brand value and a large user group. The identifying nicknames and profile pictures they have accumulated can be used as business resources to bring Tencent a competitive advantage,” said the ruling.
The court’s focus was mainly on the agreement signed between Tencent and ByteDance rather than the wider debate on user data ownership, wrote Xu Ke, a digital law expert from the Beijing-based University of International Business and Economics, on the Financial Times’ Chinese affiliate FT Chinese.
Under their developer agreement, Douyin has access to WeChat or QQ data, but “cannot use it to promote, market or advertise in any format,” Xu wrote. “Douyin used profile pictures and nicknames of users to promote [to other people], which violated the agreement. So the court ruling was reasonable.”
Recently, though, China has kicked off efforts to limit Big Tech’s control over user data.
Beijing is expected to pass a national privacy law designed to regulate the collection and usage of personal data. The legislature in Shenzhen, the city where Tencent is based, drafted a regional data protection law in December last year, the first such law in China. The document stipulated that individuals have the right to withdraw data-sharing consent at any time.
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The question of who owns user data could lay the foundation to China’s ambitious plan to establish a nationwide market for trading data.
Last Sunday, Beijing released a blueprint that outlines how the country wants to build a modern market system of “high standards”. It referenced plans to build a market for data, so that it can be priced and traded like regular commodities.
Last year, the Communist Party and State Council listed data as a new “production factor”, along with land, labour, capital and technological knowledge. Soon after, Shenzhen was asked to take the lead in establishing data trading. The draft regulations attributed ownership of personal data to individuals and public data to the state. They triggered huge controversy and the proposal remains under discussion.
Other countries have also attempted to solve the question of data ownership. The European Union’s General Data Protection Regulation, for instance, gives users the right to “data portability”, which allows them to take their data from one platform to another.
Data portability has no substantive legal basis in China, wrote digital law expert Xu, who said it might violate the spirit of antitrust.
Although data is ultimately owned by the users, Tencent may hold a different view, said You from DeBund Law Offices. “If a competitor asks users to transfer WeChat data to its platform on a large scale, Tencent might think it involves unfair competition.”
In 2016, microblogging platform Weibo won a lawsuit against professional networking app Maimai for obtaining user-generated content from Weibo without approval. The Beijing Intellectual Property Court ruled that platforms, users and third parties must follow the principle of “triple authorisation”, which means obtaining consent from all three parties.
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While the upcoming personal information protection law could help clarify the legal relationship between users and platforms, the relationship between platforms and third parties also falls under the competition law. It is one reason why the Beijing Intellectual Property Court ruled that the third party needs to get authorisation from both the platform and the users, said Jin.
Despite the complexity of the issue, some experts said that creating a trusted environment for data sharing is vital for the healthy development of a digital society.
“It’s important to be open and share data. Only then can data constantly generate value,” said Yang from Renmin University. “If the data is sealed, it becomes worthless.”
It would be “unfair for Tencent not to grant data access to ByteDance,” said You from the DeBund Law Offices.
“[Tencent] should set up a path – a standard criteria for granting access to user data in an open, transparent and fair way ... if other companies violate the rules, then they can be punished,” he said.
More from South China Morning Post:
- China antitrust: ByteDance and Tencent legal battle seen as potential landmark case
- China should promote free movement of digital data, government think tank says
- ByteDance vs Tencent: Douyin bans financial, health care influencers from redirecting followers to Tencent’s WeChat and QQ
- TikTok owner ByteDance claims WeChat banning links makes Douyin more social in latest public spat with Tencent
- China antitrust: Beijing signals that antimonopoly action will play key role in developing a ‘high-standard’ market system
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