DigiL4Arch: legal challenges surrounding digital archiving

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The FED-tWin project ‘DigiL4Arch’ will analyse and assess the legal challenges surrounding digital archiving. The objective is to comprehensively map the current legal landscape for digital archiving and to develop recommendations for a digital law for archiving for Belgium.

Digital archiving holds the promise to enhance the positive role of archives for society by increasing its ability to archive material, and by making the material easier to search and access. Yet, making information consisting of data available in a digital format comes next to technical complexities with a range of legal challenges due to a multi-layered legal framework regulating the use of data. The regulation of data within the EU has increased significantly over the recent years. 2020 saw the publication of ‘A European strategy for data’ by the European Commission which has led to an acceleration of legislation on data. EU data legislation is thereby divided into legislation focused on personal data (e.g. the General Data Protection Regulation), non-personal data (e.g. the Regulation on the Free Flow of Non-Personal Data), and ‘’mixed’’ data (consisting of both personal and non-personal data) (e.g. Data Governance Act). Taking together these legal frameworks translate into a set of core legal requirements based on broad principles and the fragile distinction of personal and non-personal data. In other words, they create legal requirements with uncertain boundaries.

Belgian archives have to navigate this complex legal framework set out at EU level and translated into national law. A challenge made even more difficult by the fact that the framework is still developing with several proposals undergoing the EU legislative process (e.g. European Health Data Space Regulation). At the same time, archives are faced by a number of technical challenges, such as the treatment of digital-born material and the potential implementation of AI technologies into the archival process, which they must solve respecting the legal boundaries set by the above-mentioned framework and related areas, such as copyright law or the newly adopted regulation for AI systems (AI Act).

The DigiL4Arch project will support Belgian archives in their digital archiving initiatives by conducting in-depth research into the various legal requirements at national and EU level that are applicable. This research will form the basis for a knowledge hub for digital archive law in order to provide practical assistance for Belgian archives. The research is focused on three objectives: (1) the identification and mapping of all legal requirements of relevance for digital archiving in Belgium; (2) the identification of regulatory gaps and friction points in the current legal frameworks; and (3) the developing of recommendations to overcome the identified regulatory gaps and friction points in order to establish a coherent digital law for archiving. The research will be undertaken by Laura Drechsler based on a FedTwin mandate between the State Archives and the Centre for IT & IP Law at the KU Leuven (contact: Laura.Drechsler@arch.be).