Systematically Handicapped? Social Research in the Data Protection Framework

Abstract

Through a careful analysis of the UK’s Data Protection Act 1998, this article demonstrates that the EU regime for personal data processing seriously threatens research into social (including political and historical) affairs. The core values of data protection – certainty, transparency, notice, informational self-determination, data minimization and confidentiality – are in clear tension with the often fluid, norm-challenging, sometimes covert, individual and even identifiable nature of much social research. Three of its key provisions, the ‘fair and lawful processing’ requirement (principle one), the right of subject access (principle six) and the general ban on extra-EEA data export (principle eight), are in fundamental conflict with key research methodologies. Moreover, especially given the broad definition of ‘personal data’ under this regime, the labyrinthine nature of the law as a whole has led to Universities implementing policies and procedures which further restrict investigative activity. This curtails academic freedom leaving key forms of knowledge production systematically handicapped, thereby damaging society’s long term interests. The article argues that consideration should be given to whether social research could benefit from the more liberal data protection arrangements for ‘journalism literature and art’. In addition, the effects of this regime on academia must be fully addressed in the review of the law now underway.