The idea that data can be owned in the traditional legal sense is a myth that businesses must abandon.
This is according to Ahmore Burger-Smidt, director and head of regulatory practice (data privacy and cyber) at Werksmans Attorneys, speaking at the ITWeb Data Insights Summit 2026 at The Forum in Bryanston.
Neither South African nor European law recognises a single, absolute property right to data, said Burger-Smidt. “There’s no monolithic property right to data,” she said. “You actually don’t own data.”
According to her, the problem is that data does not behave like traditional property. “If we think about land, I hold land because I’ve got a title. If we think about data, I’ve got a right to use it, and someone else will simultaneously also rely on that data,” she said.
She explained that ownership must be reframed and organisations should abandon the concept of absolute ownership. Instead, data should be understood as a “bundle of rights”.
These rights include the right to access, to use, to exclude, to share, to license, to port and to control disclosure. Different laws apply to different parts of that bundle, including privacy law, competition law, contract law and intellectual property law.
“Copyright is the only way that you can confer any real ownership over data,” Burger-Smidt said, adding that the legal threshold is “extremely high”.
In the absence of legal ownership, contracts become critical. “Other than a contract, I don’t have ownership,” she said. “The common law, the Roman Dutch law and current legislation, doesn’t afford you ownership. So your contract will afford you ownership.”
Burger-Smidt warned that disputes often arise around co-generated data because parties fail to contract properly.
“Don’t live under the fallacy, the myth that you own data. Assemble this bundle of rights and be best placed to use it and compete in the market,” concluded Burger-Smidt.
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