The Discovery vs Liberty judgment adds weight to the argument that the data subject and not the responsible party owns their personal data. Data protection law puts the control back in the hands of the data subject. It gives them control of what happens with their personal data. The judgment also gives us guidance as to who owns data generated by a thing (a programme) and when different organisations can use it. We’ve previously discussed who owns the copyright in data, which is a slightly different issue and wasn’t dealt with in this judgement.
Discovery vs Liberty judgment
Liberty rewards its customers by paying them a Wellness Bonus for having a good Discovery Vitality status (for example, gold or diamond). The court found that Liberty is entitled to use a person’s Discovery Vitality status to offer these rewards and Discovery can’t prevent them from doing so.
Discovery applied to court alleging that Liberty:
- infringed their trademark, and
- has unlawfully competed with Discovery by making “unlawful and unfair use of the Vitality programme, its reputation and the “back-office” that it entails.”
The court dismissed Discovery’s application and essentially said that it was not unlawful for Liberty to offer their customers rewards based on their Discovery Vitality status.
In the judgment, the judge said that “.. it is common cause that a Vitality member’s Vitality status is their personal information and can be made publicly available: it does not fall within the basket of information confidential to Discovery Vitality. Therefore, in order to find that Liberty’s conduct is wrongful, I would have to find that it is contrary to the boni mores of our society for Liberty to use publicly available information, voluntarily provided by a paid-up Vitality member who seeks insurance from Liberty, as a risk proxy and basis for calculating a Liberty customer’s Wellness Score under the Wellness Bonus scheme.”
You can read the actual judgment handed down with the full reference Discovery Ltd and Others v Liberty Group Ltd (21362/2019) [2020] ZAGPJHC 67 (15 April 2020).
Why is it relevant to others?
Data is very valuable and it is important to know who owns it. Whoever owns the data can monetise it. You want to own it so that you can stop other organisations from making money off your data. You (as the controller or responsible party) want to own it rather than the data subject owning it. This judgment is one of the first in South Africa to give us good guidance on these issues. We can apply the principles in the judgment in many other contexts.
What is the personal data of a juristic person?
This is a question that this judgment raises. In South Africa, a juristic person (like Discovery) can be a data subject. If so, what is their personal data? Personal data is any data that identifies a person. So the answer is to determine what data identifies a juristic person. It would include its registration number and maybe sales figures.
