Common Sense and Street Cred.

The advice issued by the ICO on Street View is interesting and symptomatic, in my view, of some underlying difficulties (see my previous post). It has never been clear to me whether the IC is saying, in this type of advice – when in difficulty with the balancing tests required by the rules apply common sense; or whether – when the outcome is likely to be unsatisfactory either way, forget about the rules and apply common sense instead. Clearly it would be an odd thing for the Regulator to admit, even implicitly, that there are some circumstances where you must forget about the data protection rules and use some other method to arrive at a decision.

The IC is also using common sense in another sense in this advice, by saying that it must be the sense of the new world and not the old one. Thus “It is not in the public interest to turn the digital clock back”. Actually, digital clocks tell the same time as any other clock, even a water clock. What he means is that the times have changed, and require a new common horizon, if you like; or what is credible in the view of the street. But it sometimes looks as if he is saying that within this new horizon the sort of protection that the DPA might have offered once cannot be supplied any longer – because there is a new common sense in the contemporary digital world. This is a big thing for the privacy regulator to say as an aside.

And of course it is a big step to take, because it suggests that the new technologies and forms of processing invalidate key data protection values as expressed in the data protection principles – rather than just making it more difficult to apply them.

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