The solution to online privacy is copyright law
Updated: Sep 25
Even after GDPR, governments, businesses, consumer and civilian rights organizations are still failing at online privacy, and this 2020 crisis should have us even more worried than ever. Yet in this emotional discussion we are missing an obvious solution - not to mention a golden opportunity - that has been with us for years: copying copyright law onto privacy law.
Concerning privacy there are two questions relevant that are each others’ opposites: why are you hiding something from us versus why do you want to know something about me. For business and government entities that benefit from the usage of personal online information the first question is always raised. If we protest against using our personal information they always ask: “Why? Do you have something to hide?”
For the consumer and citizen the question is always reversed. They ask these entities: “Why do you wish to have my information?” In the case of business the answer is profit. In the case of government or intelligence agencies the argument is to either to create a smoother bureaucracy or to protect us from harm.
A vicious privacy circle
These simple questions can have very complicated answers however. With intelligence gathering the obvious follow-up question is: “If you wish to use my information without my consent, can I then to assume I am under criminal suspicion?” Our laws provide us with an answer in the presumption of innocence clause: everyone is presumed innocent until proven guilty. Governments are not allowed to spy on you without due cause. It's that simple.
Yet they do. Why? In reality using non-consensual information can sometimes prevent crime and terrorism. Meaning we end up back at square one with both opposite questions. This vicious circle is pervasive. The gap is so wide that Edelmans Trustbarometer speaks of ‘The Polarization of Trust ’ between business, government, consumer and citizen.
An obvious solution
So how do we solve this conundrum? The answer has been staring us in the face for quite a while now in my opinion: copyright law implemented on privacy law. The changing face of online interactions has created a situation where every individual profile resembles that of an artist profile. Content is content after all, regardless if you are an artist or not. Everyone with a social media page, creates it. Or in short:
View private data as a propriety. In Roman law, the strongest law was that of possession, or propriety. Its ownership laws were created to make sure that neither government nor private enterprise couldn't take away that what you owned, mainly focused on land ownership. These Roman laws are still used today, and are still pretty much the same as they were in the Roman Empire. They have mostly just expanded into ownership of other things beside land, such as owning a house, a car or a boat. Your personal possessions are protected by law. And today, these laws apply to your creative possessions as well, known as copyright.
For artists the laws on image use, art output and general content distribution have been fleshed out for decades and even centuries. Furthermore, these laws have been sharpened in recent years to extend them to the online space and let individual artists make their own choices on how their copyrighted content is allowed to spread, even including Creative Commons licenses. In other words, the protection of ownership for the individual artist is already fully in place. While that of a ‘normal’ person is not.
But that’s not even the most important development. The best solutions don’t come from the laws themselves. They come from their effects in the real world. Because of these laws there are now both numerous protection agencies and countless thriving businesses that monitor and protect but also monetize and spread copyrighted content across the web. Every time the artists’ content is used somewhere, it can be known to them and they can either profit from it or have the content removed.
What lawmakers can do
These beneficial solutions are a perfect example of how lawmakers can have a positive impact. Because of lawmaking, entire industries are now profitable and fair. Just think of all the video and music services. From distribution platforms to online creative courses and from rating systems to content protection agencies, gigantic networks are working daily in a system that is mutually beneficial to all players.
None of it is perfect of course. But compared to the abysmal state of personal profile protection, it works very well. Not to mention the fact that an individual can’t profit from his own social media content, while the artist always profits, however big or small, monetary or in reputation, from copyright law. And the big kicker? The artists – or their representatives – have almost full control over both profile and content.
Fighting crime and terrorism
And it gets even more beautiful: copyright law can show us how to deal with crime and terrorism too. Like a gigantic collection of interconnected rafts on water, all of these agencies, businesses and services check and balance each other out to prevent fraud and crime… independent of government and intelligence interference.
While intelligence agencies have a duty to respond to malicious intent, the copyright system prevents it from happening in the first place. And if it does happen, they can immediately contact authorities, since they already have the information. In other words, spotting online wrongdoing is made easier because of all these interconnections. And only gets spotted when it occurs, meaning there is no spying needed on those who are innocent and are supposed to be protected by the innocence clause in law.
With similar laws to copyright in place for the private consumer/citizens on social media and online retail outlets, we will be able to stimulate a self-correcting mechanism that leads to extra profit. The individual determines what is communicated and whom they trust to profit from their personal data. And although this will first put some strain on businesses and governments, the end result will be a much smoother, safer and more profitable online space. And a happy consumer.
Everyone profits with more privacy protection
Ironically, those who are in the best position to profit from this sea change, but are most reluctant to do so, are social media. In this model, they can all of a sudden sell services to the group they have such a strained relationship with: their profile holders. This gives them an extra line of revenue from their users.
This makes this idea a golden opportunity for lawmakers, governments, intelligence agencies and online businesses to stand side by side with consumers and citizens and bridge the gap in this age of distrust. They can show what they are truly worth to us through lawmaking, restoring the way government should actually work.
The alternative is that in this age of distrust very disruptive and invasive new tech will be forced to emerge by hackers, further widening the gap instead of closing it and failing to restore that much needed faith in one another. It is high time to extend the protections of original content of artists to the protections of original content of citizens and consumers. In other words: copy copyright law on privacy law.
We are all artists
If lawmakers make these laws then in return we, the people get back our control over our online privacy. And then we build new and modify existent apps that provide us with both a defensive safety net and the opportunity to make money.
In other words, if we are all considered artists, and we own our data by law, everybody thrives and no one needs to hide if they don’t want to.
And plant trees people. Plant trees.
Rogier van Kralingen
(ps Rogier majored in communication science and minored in copyright law...)