Every microsecond, personal data are being collected, processed and exchanged. But who does it belong to? Individuals, States, platforms, brokers...? While some insist on establishing a right of ownership on the data, it does not appear as a viable solution, for at least two reasons:
1. Right of ownership would imply exclusivity, when it is precisely the circulation and use of data that creates its value.
2. The balance of power between individuals and platforms is clearly unequal. The latter will continue to impose their terms, with no possibility of negotiating, leading to a sale of our personal data at derisory prices.
Who owns personal data?
If our data are called « personal », our ownership or belonging of them is not obvious. According to the French Civil Code, ownership refers to three attributes: usus (right to use), fructus (right to produce), and abusus (right to dispose).
A right of ownership thus implies an exclusivity that could quickly lead to absurd situations. If I am the owner of my first name, then no one else would have the right to use it without my prior authorization, or would have to pay me a license to avoid being sued for identity theft. The result would be the opposite of what is sought, because it is precisely the circulation and use of data that creates its value.
Those who claim a right of ownership over personal data forget that raw data, data that is not linked to others, has very little intrinsic value.
« Personal right » vs. « right in rem » over data
The question of the attribution of proprietary rights is all the more delicate as the concepts of ownership are very different from one continent to another. Both in France and in the European Union, we have a personalist approach: individuals have rights over their personal data. This does not boil down to the protection of a mere economic value, as proposed by the American « pragmatic » approach.
Thus, our conception is not particularly propitious to a proposal of patrimonialization. The French Senate report entitled « Privacy in the age of digital memories. Towards greater trust between citizens and the information society » had already ruled out the possibility of granting proprietary rights to individuals in 2009, referring to the risk of merchandising personality attributes. By considering that a data, in the same way as a kidney or a lung, would be an emanation of our person, it could thus be forbidden to trade it. This is why some defend the idea of using the legal rule of the unavailability of non-commercial things for data, just as the unavailability of the human body prohibits anyone from trading in all or part of his or her body.
The most decisive argument remains above all the unequal balance of power that would exist between the co-contractors. In other words, how would an individual be able to determine the value of his data? A few illustrations: How much would your genetic code cost? What would you charge to sell your musical tastes? Each of us would quickly fall victim to an informational asymmetry that would lead us to sell our data for a derisory amount.
Surely, an individual should be able to control the use of his personal data, for example by choosing how to manage the primary and secondary use of his data, and so on. However, « proprietary ownership » in the legal perspective would not directly solve this problem. On the contrary, since the evaluation of the price of data depends on their use, it could lead to under- or over-valuation.
Platforms offering to buy user data will impose membership contracts on a « take-it-or-leave-it » deal, with no room for negotiation.
How does the law stand?
The French Law for a Digital Republic of October 2016 ruled out the idea of proprietary data, while allowing individuals to retain control over it. Indeed, Article 1 of this text provides that "Any person has the right to decide and control the uses made of personal data concerning him/her, under the conditions laid down in this law".
This so-called "informational self-determination" principle had been defined by the German Constitutional Court as early as 1983. By endorsing it, French domestic law has reaffirmed that an individual is the right-holder regarding his or her data. Informational self-determination must be understood as an end in itself, and can be understood as the possibility of transcribing and controlling one's identity in the digital space. This autonomy goes hand in hand with the right for everyone to be aware of what is known about them.
This is one of the reasons why the law for the Digital Republic has created an obligation of loyalty for the platforms. It imposes on the platforms a stronger obligation to provide information to the consumer. In other words, platforms’ transparency becomes a necessary condition to ensure compliance between the displayed promise of the service and actual practices.
The principle of platform loyalty is intended to compensate for the structural imbalance between the platform, often in a monopolistic or oligopolistic situation, and users, who are in a dependent situation since they are unable to find alternative services. Other solutions deserve to be explored and will have to be found, without falling into the illusion of a salutary ownership.
Originally published in French here.