Sunday 7 November 2010

My meaning of “fairness”

I’ve recently had an email asking me to explain what I mean when I use the term “fairness”:

In your profile you mention that you prefer the principle of fairness. Me too. But can you tell me, what you mean by fairness? It is namely an ethical, not legal category. Fairness is not defined in the DP Directive of the EU, although it says, that personal data have to be processed fairly.

Well, here goes.

My sense of "fairness" relates to balancing the rights of data controllers as well as people - and trying to cut through the confusion that some people have that just because information "relates" to them, then it must "belong" to them in the sense that they must always have rights to control that information. We somehow need to respect information which is generated within someone's private sphere and find an easier way of flagging when that "private" information has ceased to become "private" and is now "public property".

For example a person’s religious beliefs may be "private" until they publically declare them, at which time they become "public property". Someone's criminal history should (subject, say, to the provisions of the Rehabilitation of Offenders Act) should be considered "public property". I don’t see why someone who tries to profit from their “good” reputation should always be allowed to hide the “bad” bits simply because it diminishes their commercial value. Thank goodness we have some judges who are prepared to query aplications for “super injunctions” and challenge the right of “celebrities” to retain their commercial value by masking stupid (or unlawful) acts which they may have been committed casually or, even worse, wilfully.

Someone’s credit history should not be a private matter to other credit providers, so long as at the time of initially applying for credit, the credit provider had made it known that it would share details of its clients’ credit histories with other credit providers. At work I receive a small trickle of computer-generated letters from people who have poor credit records, instructing me to delete the adverse credit information once their account is back in order again. These people receive computer-generated replies explaining that the company has a right (and it exercises this right, and it has told applicants that it will exercise this right) to share factual credit information with other credit providers, so that everyone involved can have a better picture of “their” customer and decide for themselves how much credit to allow at any particular time.

At work, I’ve tried to answer questions of fair processing by creating four different categories of customer information which can be generated from our corporate systems. I’ve then asked myself if I can explain the circumstances when it is fair that the company can:
1. use this information for its own legitimate purposes, and/or
2. sell (or otherwise provide) this information to third parties so that these third parties can use it for their own legitimate purposes.

I’ve asked myself when it would be “fair” for the company to do such things when it had simply explained its intentions to individuals (using, say, a privacy policy), and when it would be more appropriate to acknowledge that the information was sufficiently sensitive for individuals to have a specific right to allow (or not, as the case may be) their information to be used for such purposes.

My four categories of customer information are:
1. general customer contact & credit details (eg their name, address, credit history)
2. account administration details (eg how they use the services which the company provides – and as the company is a communications company, I mean who the customers were communicating with, etc)
3. the content of their private communications (as the company is a communications company, I mean what they said/texted/emailed/web pages visited, etc)
4. the content of their public communications (eg the content of blogs they posted and other views which they freely published on the internet and made available to all web users (not just those who know the access password to that website).

I’ve also asked whether the answer to each question would be different if I deliberately ensured that the customer information was rendered (to the business or to a third party) in an anonymous manner, so that no-one had any way of knowing who the person (or people) were who, say, used a particular communications device to surf the internet.

It’s not necessary for me to reveal the answers in this blog, as the purpose today is to explain the process I use to ask the same question (ie “when is it fair for me to ...) when considering whether or how different types of customer information can be used. The answers, so to speak, might well comprise confidential commercial information which I would not be at liberty to divulge in a private blog anyway. So I’m not going to.

(Perhaps, if I came up with some answers to these questions when I was not working, then they might be legitimate material for a future blog, but I’m not going to be doing that today).

My point, however, is that it’s not simply a question of giving a customer an option about whether their personal details can be used for marketing purposes. If only life were that simple.

I sense that I’m going to return to this point again, as I have barely scratched the surface of the question.

Issues around the “fairness” of protecting image rights are complicated. Google have found this out recently – although the matter of how images of buildings can be considered personal data will be considered in another blog. I do find it hard to understand, however, why so much fuss is made of images of the sides of buildings captured by their Streetview service. If people really are keen to prevent the publication of images of buildings, then why they didn’t they make a similar amount of fuss a few years ago, when images of those same buildings were uploaded onto the internet from another angle - from above, rather than from ground level – thanks to Google Satellite.

Also, I'm not sure about Wayne Rooney's image rights. When you make so much money thrusting yourself in the public eye, do you really have the right to retain those rights for all purposes? One blogger recently queried how “one of the ugliest men in the world” (his description, not mine) could actually make any money out of their image rights, but I guess he had missed the point.