Scientific research: definition and commercial limits

Under which circumstances does the GDPR consider scientific research compatible with existing purposes of personal data processing? Recent positions by regulators and legislators show it is still a hot topic – one with major implications for R&D globally.

Recital 159 of the GDPR states that “the processing of personal data for scientific research purposes should be interpreted in a broad manner including for example technological development and demonstration, fundamental research, applied research and privately funded research”, showing that commercial research is also relevant.

But what are the limits? Is research to identify better ways to achieve your commercial goals “scientific research”? Some have suggested that not all commercial research should be taken into account.

It’s an essential question, because the more limited the definition, the less can be done based on the “purpose limitation” principle. Plus, Article 89(1) GDPR provides a framework to make that processing work while limiting privacy risks.

In the proposal for a Digital Omnibus on the GDPR & ePrivacy, the Commission has proposed the following definition for “scientific research”:
any research which can also support innovation, such as technological development and demonstration. These actions shall contribute to existing scientific knowledge or apply existing knowledge in novel ways, be carried out with the aim of contributing to the growth of society´s general knowledge and wellbeing and adhere to ethical standards in the relevant research area. This does not exclude that the research may also aim to further a commercial interest.

The EDPB & EDPS (so all EU data protection authorities), in their joint opinion on the Digital Omnibus proposal, have taken another view: “scientific research should: 1. be conducted following a methodological and systematic approach of the relevant scientific research field […] be conducted in an autonomous and independent manner; 2. lead to verifiable and transparent results”, and “product research and development may support innovation, but does not necessarily constitute scientific research”.

I believe that an emphasis on transparency is a slippery slope towards de facto exclusion of commercial research, especially where no patents are (or can be) obtained as a result of that research. When I pointed this out, I was told that my reading is incorrect and that the joint opinion “does not exclude commercial interest from research and promote transparency without requiring to publish the pseudonymised data”.

Yet I am not alone in this view, and Dr M.R. (Mark) Leiser’s excellent in-depth analysis of the question explains very well why it is a dangerous position.

Whatever your field, from AI to clinical trials, these rules should not evolve to de facto create a distinction between commercial research and other forms of research.

Mark’s analysis on his Substack, a must-read: https://lnkd.in/em_TtvZt