Personal Data Ownership as a Legal Right?
Here is a hypothetical framework that I developed while pondering this issue as a part of my studies at LSE.
Underlying Value Framework
- Informational Privacy: Every human has a fundamental right to informational Privacy.
Privacy is a fundamental human right. While individuals may or may not make informed choices, the state should guarantee that an individual’s informational privacy is protected under the law and that she can enforce this right legally, seek redress and make choices of her own will. She can move the courts in a writ petition to enforce this right.
- Reasonable Restrictions to Informational Privacy: To protect the rights of others and the common good of society. (Adapted from the Indian Constitution).
The idea behind reasonable restrictions is that, at times, the exercise of one’s fundamental rights may infringe upon another’s. For example, an exchange of messages between two persons (A and B) may need to be made public to protect one of B’s fundamental rights, and to that extent, A’s rights would be accordingly circumscribed. Further, restrictions may be needed for public order or national safety. For example, the Indian Constitution places the following restrictions on the Fundamental Right to Freedom of Speech: ‘in the interests of the state’s sovereignty and integrity, friendly relations with other countries, public order, decency or morality, or contempt of court, defamation, or incitement to commit a crime, or in the case of contempt of court, defamation, or incitement to commit a crime.’
- Personal Data Ownership:
Strengths & weaknesses of the Value Framework:
|1. Informational Privacy
|Protection of a vital human right.
|2. Reasonable Restrictions to Informational Privacy
|Protection of the rights of other individuals and promotion of societal welfare
|An autocratic state may test the limits of rights and restrictions, and unless the judiciary is independent and effective, individuals’ rights would be endangered. Secondly, Regulatory capture by corporations could dilute this right.
|3. Personal Data Ownership
|Protection of rights of individuals over their personal property (data) and respecting free choices of individuals, and simultaneous promotion of societal welfare. A fair, transparent, and certified system of data trusts would enforce the rights of data subjects and lead to a more equitable distribution of value creation in society.
|An ineffective or unreliable system of data trusts would make it hard for data subjects to enforce this right, given that the market for personal data would be imperfect and suffer from information asymmetries and an imbalance of bargaining power between several individuals on the one hand and big corporations on the other.
Combining the Fundamental right to Privacy and the Legal right to Personal Data Protection:
- The market for personal data, which is currently highly skewed in favour of corporations, will become fairer. Individuals, by way of data ownership, can use the services of Data trusts to manage their personal data as per their own choices and monetise it as they choose.
- As mentioned above, these values will empower the data subject. At present, with limited rights under data protection laws, residual property rights flow to the corporations that are opaquely harvesting data subjects’ personal data for profit and using it for profiling and behavioural advertisements, which may be harmful, undesirable or unwanted by the data subject. The value framework described above could give the data subject more control over their data.
- Companies would still be able to use data; however, they would have to negotiate with individuals/data trusts and compensate individuals whose personal data they use. The state can still lay down data uses necessary in the societal and public interest but would have to justify these uses to the courts if data subjects choose to object.
- Legal ownership of personal data vis-s-vis commercial entities circumscribed by the social good would achieve a more optimal distribution of the value of personal data.
- The market for personal data is highly opaque and unfair to data subjects. There are several reasons for market failure, such as.
- Information asymmetries: For example, if people knew in sufficient detail how their data had been traded with third parties (they never consented to share data with) and how they are being exploited through behavioural ads and discriminatory pricing, they would probably be far less willing to give away their data for free services and place much more value on sharing their data.
- Low Bargaining Power vis-à-vis Platform Ecosystems: Individual data subjects have poor bargaining power in relation to platforms enjoying network effects, economies of scale and scope. The lack of data portability and interoperability entrenches this imbalance.
Once professional data trusts enter the fray, it may be expected that data subjects’ choices will be better exercised. If supported by legal measures reflected in the values suggested for a data ownership framework, the information asymmetries would be better addressed, and the bargaining position would be more balanced. Further, if the public interest so demanded, data would be shared, For example, to help the industry develop a vaccine.