Mark PestronkQ: Last week, a major account told us that it was switching to a mega agency under a global-consolidation mandate from the client's parent company. Now, the account's corporate travel manager is asking us to authorize a transfer of the hundreds of traveler profiles that we maintain as well as the corporate profiles that contain each division's special requirements. The account claims that it owns the profiles because it is "their data." Further, the account claims that we are obligated to hand over "their data" without charge. We compiled the profiles ourselves, and we update them as needed. Our contract with the corporate account does not cover who owns the profiles. Is the account correct and, if not, can we charge a fee for reproducing the profiles?

A:
Contrary to the conventional wisdom, the account's position is nonsense. You can legally refuse the corporation's request, or you can insist on a fee for your services in connection with the transfer.

In the U.S., there are no statutes, regulations or judicial precedents about which party owns travel-data information in general or traveler-profile information in particular. These questions are usually addressed in website terms and conditions, privacy policies and other documents with contractual effect.

However, if no contract specifies otherwise, then the profiles and the data in them belong to whoever possesses the profiles in their computers. It is really that simple.

If you own a computer, then you own the data inside it. If the profiles are stored there, you own them. If the profiles are stored in the GDS' computers, the GDS vendor owns them.

If you own the profiles because they are in your computers, you can do as you wish with them. You can even sell the data to third parties such as travel suppliers or your client's competitors, unless you are subject to data privacy laws in effect in the European Union and more than 60 countries.

If your GDS vendor owns the profiles because they are stored in the GDS' computers, the GDS can do as it wishes with them, including transferring the profiles to the mega agency, unless your GDS contract prohibits such transfer.

In practice, if the account asks the GDS vendor to let the new agency have access to the profiles, the vendor will usually ask for your consent first. However, such a practice is not required under the standard GDS contracts in effect today.

In any case, what the account is really asking for is your services and expertise in helping with the transition, either by transferring your data or asking the GDS vendor to do so. You can provide the services and expertise without charge, or you can charge whatever fee you can negotiate.

Corporations that want the right to compel an outgoing travel agency to transfer the profiles need to provide for the transfer in their travel management agreements. Some corporate-travel consultants recommend this practice, and I have seen such clauses in some contracts, most notably in federal government contracts.

Conversely, agencies that don't want to cooperate with such transfers may want to specify that no such transfer will be required. Even though, under my analysis, such a provision is not strictly necessary, it may not hurt to spell it out.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected]. 

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