I was on the phone with a friend and I could feel his growing sense of outrage. “I can’t believe it,” he said. “Google is reading my mail. They targeted me with ads that could only have come from specific words I’d used in a confidential letter I sent to my lawyer.
“It’s like they came into my yard and stole the garden furniture!”
Google analyzed the contents of the letter, which was sent through Gmail. It then bundled the contents with other private data and sold it for targeted advertising purposes. It’s big business for them.
If that letter had been sent by the conventional postal service, it would be considered a form of private property under government protection. Unauthorized reading of it would be a criminal offence.
But this kind of digital invasion is chump change compared to what’s happening today.
Facebook’s deeply invasive data gathering has recently hit the headlines as millions of individuals’ private lives have been analyzed, profiled and sold to third parties for partisan political purposes. This is serious – the United States senate is investigating whether this kind of intrusion might have affected the outcome of the last presidential election.
But there’s more. Violations of personal privacy are more invasive and occur on a much larger scale than anyone thought possible, even a few years ago.
For instance, the next time you attend a sporting event, turn over your ticket and read the fine print. You’ll likely discover that the venue has committed you (without your active consent) to agree to their capturing of your digital image and behaviours (shouting or laughing), consuming various commodities or just enjoying the event.
Once an image has been gathered, advanced face-recognition algorithms can easily be employed to identify you. It’s child’s play for them to integrate this data, access other social media data about you and invade your privacy for profit.
All this happens while you’re innocently enjoying the game; in fact, most of us are totally unaware of what’s going on.
Violations of this sort are handled much differently in the analogue world, which most of us mistakenly believe we’re still living in.
Professional photographers and moviemakers are familiar with the laws of copyright, which have been modified over the past few decades to provide protection for your personal image. Indeed, copyright law has created a right of property, with the potential for civil damages, if someone uses your image (without your active consent and/or compensation) for commercial advantage.
In this case, the law distinguishes between “commercial” use of an image and “editorial” use. If a photograph is taken of a model for advertising purposes, the photographer will ensure that an agreement is in place to use the images and that adequate compensation has been awarded for the use of what is, after all, valuable private property.
According to copyright specialist Carolyn E. Wright of photoattorney.com, the editorial use of images is different, in that, unlike the purely commercial use, this use advances the public interest. “If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests.”
Copyright laws have extended these personal property rights well beyond the image itself to “include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.”
Social media giants like Google and Facebook seem to have employed legal sleight of hand to position themselves outside the law.
But all that’s about to change, at least in Europe.
On May 25, the General Data Protection Regulations will be imposed in the European Union on social media’s collection and use of personal data. Consent will have to be active and it will no longer be enough to bury that consent in the fine print.
This legislation addresses privacy concerns but enforcing (and extending) existing copyright law would the simplest way of strengthening individuals’ rights of property. That would help shift the big data balance of power back in favour of the individual.
As my friend would say, that should put an end to social media giants coming into our yards and stealing our garden furniture.
Robert McGarvey is chief strategist for Troy Media Digital Solutions Ltd., an economic historian and former managing director of Merlin Consulting, a London, U.K.-based consulting firm. Robert’s most recent book is Futuromics: A Guide to Thriving in Capitalism’s Third Wave.
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