If we accept that there is now a general crisis of the capitalist system, and that whatever takes its place as a reformed capitalism will be significantly different to what we have known over the past 30 years or so (see Geoff Mulgan’s article “After Capitalism” in Prospect this month), then what is the future of Information Rights and Law?
Take one small point. In the past, in the commercial and private sector, it was often said that reputational concerns would always work to ensure compliance with data protection requirements and rights, otherwise customers would go elsewhere; and nowhere was this more the case than in the financial services sector.
Yet the events of the past year have revealed how little we knew about what was actually going on in financial institutions; and have exposed such a level of reckless enthusiasm for short term financial gain, that it is difficult to see how reputations can be restored quickly. When I was attempting last year to invest some modest amount with a bank, I asked the bank why I should lend them my money, when banks were refusing to lend each other money. No answer to that one. Because I had to make a decision on some very basic negative factors which seemed to be prevalent throughout the sector, I didn’t get past stage one. I was concerned, if you like, that any Bank might lose my money; and not about how a particular bank might handle my personal data.
Things are more regularised now, but even so the infrastructural crunch has set individuals against financial institutions/employers in a struggle for scarce resources (recently abundant), and we can expect to see this play out in the area of personal information; credit histories may become even more toxic, for instance.Companies under pressure may downgrade attention to privacy issues, or establish relations with consumers which are more guarded and secretive.
The public sector outside the Treasury is also reflecting the crisis. Michael Wills, the Minister at the Ministry of Justice, headlined his article in the Sunday Times on March 22 as “Hard Times call for a new Bill of Rights”. This Bill of Rights has been on the agenda for some time, and may originally have been conceived of as a codification of existing rights. What he had to do was to find a means of placing this agenda in a very different post-crunch context. His solution was, in announcing the Green Paper on Rights and Responsibilities, published on March 23rd, to ask whether existing safeguards are sufficient for these changed recessionary times.
Surveying the existing rights scene, he wrote, among other things, that “The Freedom of Information Act has established transparency as a mechanism to empower the individual against the state and the Data Protection Act safeguards privacy.”
But why, if privacy protection is what the Government wants, concoct information sharing proposals which, most commentators agree, appeared to be directed at removing the little privacy protection that currently exists. Why look for further safeguards when the existing ones are so regularly discounted? Why not do something about the Database State instead? With its record, the Government’s attempt to make the rights agenda seem relevant to hard times by inflating that agenda is not convincing.
So the new regulator, Christopher Graham, has a formidable and isolated task. He has the right legacy from Richard Thomas to build on; but he needs to demonstrate quickly that he is responding to the new circumstances. He needs a plausible narrative showing that privacy issues are important even when you may be losing your pension, house or job; and he needs to distance himself from the Database State. But establishing these positions in a way which doesn’t seem either beside the point or soft on the paymaster is going to be very difficult indeed.