Round and Round the Garden? Big Data, Small Government and the Balance of Power in the Information Age

Abstract

We live in an age of information, where from government departments to small high street businesses, personal data has evolved into a currency that is tradeable for goods, services, information and social contacts. This has made it vulnerable to political and economic pressures where an individual may be tempted or even forced to disclose or share their data with others in to be able to participate in commercial, social or political life. This may result in a situation where existing power imbalances within society could be further exacerbated through an increasing asymmetry between those with access to information about others and those whose information is being accessed. The EU data protection framework is designed to ensure that individuals (data subjects) retain overall control of their data in order to protect their right to information privacy, which is acknowledged as a human right in the EU. However, the advent of the internet and the worldwide web has put increasing pressure on the rules comprising that framework. This article looks at the evolving concept of personal data within EU data protection law and the way in which it continues to link protection to the identifiability of the data subject. It also explores the prevailing understanding of privacy harms as material, quantifiable and individualized damage to data subjects’ interests. It highlights a number of invisible harms that have not yet been adequately addressed by the existing or the proposed new framework and argues that those harms as well as a wider concept of personal data need to be considered in the future to prevent a division of our societies into privacy haves and have-nots. This articles concludes that, after all, the question is not whether changes to the existing EU data protection regime will be sufficient to tackle the new privacy issues raised by the online environment, but whether we must replace familiar concepts like identifiable personal data and easily quantifiable harms with new ways of thinking about privacy and data protection, if we want to prevent the growing information asymmetry, and the invisible harms resulting from it, that is capable of causing long-term harm to our societies.