Data Protection Bill [HL] - Committee (3rd Day) (Continued)

Part of the debate – in the House of Lords at 6:00 pm on 13th November 2017.

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Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords) 6:00 pm, 13th November 2017

My Lords, I was not referring to this amendment specifically in commenting on Amendment 71ZA, but we had difficulty getting this amendment in scope, so as to be in line with our aspirations and what we wanted to discuss today.

Amendment 71A would introduce an individual right for data subjects to be informed by data controllers when there is an actual or intended commercial exploitation of their personal data. Machine learning will allow data companies to get a lot of value out of people’s data—indeed, it already does. It will allow greater and more valuable targeting of advertisements and services on a vast scale, given the way that modern data platforms work. This skews further the balance of power between those companies and the individuals whose data is being exploited.

One could probably describe the current relationship between people and the data companies to whom they give their data as rather unsophisticated. People hand it over for a very low value, as in a bartering service or crude exchange—and, as in a barter economy, it cannot be efficient. This amendment will test whether we can get more power into the hands of the people who make the exchange to make the market function better. The companies’ position is completely the reverse: it is almost that of a monopsony, although as a technical term monopsonies are those situations in which dominant companies set a price for the market, whereas in this case there is no price. It is interesting to follow that line of thought a little further because, where there are monopsonies, the normal remedy put forward by those involved is to publish a standard price list. That improves choice to the point that people are not exploited on the price they pay; it is just a question of choice on quality or service, rather than the price. That at least protects individuals to some extent against the dominant company exploiting control.

The essence of this amendment is an attempt to try to give power back to the people whose data is being used. We are talking about very significant sums of money. I gather from a recent article in the Guardian that the top price you can get for your data—although I am not sure whether “price” is the right word here; “value” might be better—is about $14 each quarter for a company such as Facebook. If you compare that across the world, in the Asia-Pacific region it is worth only about $2. There is a variation, and the reason is the ability to exploit some form of advertising revenue from individual data, so the US, where the highest prices are going to be available, was worth about $2.8 billion in advertising revenue to Facebook last quarter while the second-biggest Facebook market, Europe, was worth only about £$1.4 billion, which is about half. You can see how the prices would follow through in terms of the data. We are talking about quite a lot of resource here in terms of how this money flows and how it works.

The process of trying to seek the money has already started. Some companies are now trying to reverse the direction of travel. They go to individuals through the web and offer them the chance to connect all their data together across the social media companies in which they already have it. The companies then value it and try to sell it on behalf of the individuals to the companies concerned. That is obviously the beginning of a market approach to this, which is where this amendment is centred.

I mentioned that I had difficulty getting what I wanted in the scope of the Bill. I think I have mentioned this before, but it seems to us that we do not yet have the right sense of what people’s data represent in relation to the companies that seek to use it. One suggestion we have had is that we might look to the creative industries—not inappropriately since this is a DCMS Bill—and think of it as some form of copyright. If it were a copyright—and it may or may not be possible to establish one’s personal data in a copyright mode—we would immediately be in a world where the data transferring from the individual to the company would be not sold but licensed, and therefore there would be a continuing sense of ownership in the process in which the data is transferred. It would also mean that there would have to be continuing reporting back to the licence holder for the use of the data, and we could go further and expect to follow the creative industries down the track which they currently go. The personal copyright would then have value to the company and there is a waterfall, as they call it, of revenue exploitation so that those who hold the copyright might expect to earn a small but not insignificant amount from it. We begin to see a commercial system, more obviously found in other areas of the marketplace, but it relates to the way in which individuals would have a value in relation to their data, and there might even be a way in which that money could be returned. If you were in that happy situation, what would you do with the money? One would hope that it would be useful to some people, but it might also be possible to accumulate it, perhaps through a collecting society, and see it invested in educational work or improving people’s security in relation to their data, for instance. There are many choices around that.

Having said all that about copyright, I am not particularly wedded to it as a concept because there are downsides to copyright, but it is an issue worth exploring. The essence of the amendment is to try to restore equality of arms between the individual and the companies to which the data is transferred. I beg to move.