Tomorrow's privacy: personal information as property

Abstract

The law has always been required to grow to meet the political, social, and technological changes of the society it serves. Thus in medieval times law was aimed at protecting the most valuable form of property of the time (namely land), so that real estate and trust law developed to high levels of sophistication. With the arrival of industrialisation many laws regarding the protection of personal property, the artefacts of the Industrial Age, were developed and refined. We should therefore not be surprised to find that for us, in the early years of the Information Age, there is a ferment as the law seeks to find appropriate ways of dealing with the new age's most significant asset and common currency: Information. It has often been said that ‘Information is the New Oil’. If this pronouncement turns out to be only partly correct, you only have to look at the fabulous wealth enjoyed by those who own the ‘old oil’: the Gettys, Sheikhs, and Oligarchs to realize that this new asset is indeed of vast economic value. Yet the law has not up to now been able to provide a consistent or convincing answer to one simple question: who owns it? Indeed, for various categories of information the very notion of ownership is abhorrent. A society based on the rule of law and democratic principles of government must require that certain information is, of necessity, freely available to all citizens. Thus, courts and parliament are open to all to attend and reports on the Information there communicated are available to all. A vibrant press reports ‘all the news that is fit to print’. The laws of defamation and breach of confidence, along with developing notions of ‘common decency’ act to define what is or is not ‘fit to print’ from time to time. Of course, the very notion of ‘printing’ illustrates the distance we have already travelled in this Information Age. The digital versions of most publications along with broadcasting channels, search enquiries, and social media services already serve to be the vehicles by which most ‘newsworthy’ information is provided to the public. The asset that all these vehicles are dealing in is indeed Information, and the market standing and consequent valuation of these organizations is reflective of the skill and labour that they bring to the task of manipulating their raw material.