Rights and Responsibilities in an Information Society
This is a Refereed Article published on 27 February 1998.
Citation: Moore N, 'Rights and Responsibilities in an Information Society', 1998 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/infosoc/98_1moor/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_1/moore/>
Social, technological and political changes are accelerating the move towards information-intensive societies. With these developments come a new form of citizenship rights: intellectual rights. These follow on from earlier sets of rights: civil rights that were a product of the eighteenth century; political rights that developed in the nineteenth century and social rights that are a twentieth century phenomenon.
There are five main types of intellectual rights. Intellectual property rights are concerned with the right to profit from one's intellectual endeavours and the right to prevent others from doing so. Data protection and privacy rights are designed to give individual citizens control over the use of information about them. Freedom of information seeks to give individuals the right of access to information held by governments and corporate bodies. Censorship is the right to be protected from obnoxious information. Finally, we are likely to see the emergence of a right of access to information and advice services.
Along with rights of citizenship it is possible to identify new forms of responsibilities that are being imposed on governments, organisations and individuals. The information sector, in particular, is being held responsible for its actions in ways that were uncommon only a few years ago.
These new rights and responsibilities can be held to be defining characteristics of new information societies.
Key words: Intellectual rights; information society; intellectual property rights; data protection; privacy; censorship; freedom of information; information and advice services; information industry
Societies of all kinds are held together by complex networks of rights and responsibilities. They define what the members of society can and cannot do. And they define the relationship between individuals and the state. In so doing, they define the underlying nature of the society: whether a society is benign or despotic depends on the nature of its network of rights and responsibilities.
As societies evolve, so the rights and responsibilities change in response to a combination of political, economic, social, cultural, philosophical and technological development. It is not surprising, therefore, to see that the emergence of information societies is bringing with it a reassessment of rights and responsibilities.
In 1950 TH Marshall suggested that human rights are not absolute but are derived from prevailing social, economic and political conditions (Marshall, 1950). Rights are conferred on individuals by the state: they are not inherent in the human condition.
Thus Marshall showed that civil rights were a product of the eighteenth century. They were the right to freedom of thought, speech and assembly and a right to justice. As such they were a product of the wave of new thinking about the relationship between the individual and the state that swept Europe and America and that led to the American War of Independence, the American Constitution and the Bill of Rights on one side of the Atlantic and to the French Revolution on the other.
The nineteenth century brought us political rights: the right to elect local and national political leaders along with the right to join trades unions to represent collective views in the workplace. It was a period of industrialisation, producing the rise of a working class; the creation of great new cities; the beginnings of mass education and major re-alignments in political thought. Although the origins of political rights lie in the nineteenth century, some groups, notably women, had to wait until the twentieth century before the rights were accorded to them.
In the first half of the twentieth century the focus shifted to social rights, often described using the shorthand term of the welfare state: the right to basic standards of housing, health services and education. The culmination of this process of development in Britain were the great reforms of the mid-century: the Beveridge report on social security, the creation of the National Health Service, the 1944 Education Act. Similar developments took place in European countries and, to a lesser extent, in North America. Such reforms were the product of increasingly affluent, well-educated, maturing democracies in which there was a prevailing view that the benefits of society should be shared amongst all.
These were the three rights that, according to Marshall, defined and constituted citizenship. Since then the world has moved on and, as we develop into an information-intensive society, it is now possible to discern a fourth set of rights. These we can call intellectual rights. They are the rights that we, as citizens of the state, require in order to function effectively within a state that is increasingly sophisticated and more and more reliant on information.
The concept of such rights is not new. Michael Young, the social reformer, made an early attempt to define them twenty years ago in a pamphlet for the British National Consumer Council (National Consumer Council, 1977). At that time he was concerned primarily with arguing the case for local advice services. Two decades later, we can see that his view was too restricted. We can now identify a set of rights that are concerned with the various ways in which we relate to an information-intensive state.
This is clearly one of the key intellectual rights. We each should have the right to profit from our intellectual endeavours. More particularly, we should be able to prevent others profiting at our expense.
Until relatively recently, such intellectual property rights were uncontentious and fairly easily enforced, given a degree of goodwill on all sides. Since then the technology has changed considerably and it is now more and more difficult to protect intellectual property. Not only is it easier to copy, but the copies can be made available anywhere and everywhere in a global market.
For most individuals, intellectual property rights are relatively unimportant. But the situation is changing steadily. As societies and economic systems become more and more information-dependant, so more of us stand to gain from our intellectual endeavours and to lose if others unfairly exploit our creativity.
The consequence of this has been a concerted attempt, on a global scale, to develop a new framework of intellectual property laws that are internationally consistent, enforceable in different jurisdictions and sufficiently flexible to accommodate future technological change. Such legislation is perceived to be a critical element in the efficient functioning of the international trading system.
The need to limit access to, and use of, information about us as individuals has become increasingly apparent as more and more organisations have become able to process increasing amounts of information about individuals.
The concept of Data Protection came out of the Council of Europe which, in the late 1960s, sought to ensure that the European Convention on Human Rights conferred on individuals the right to protect personal information. Thought at the time to be rather arcane, the concept of data protection has become very well established as an important mechanism regulating the relationship between individuals and not only the state but also the corporate sector more generally.
The recent attempts in Europe to revise the legislation do not challenge the principles underlying the original Directive, rather they set out to extend the scope of the protection and to define more precisely what is meant by personal information. In so doing, the emphasis is shifting from data to information.(Data Protection, 1997)
We can expect to see further extensions of the basic data protection principle. One extension would be to give individuals the right to license the use of information about them. Data users would only be able to use information in circumstances where the subject has specifically assented to that use. This would be to shift the balance from the user to the subject. We have already seen one example of the collective expression of this view when a town in the USA attempted to prevent the filming of a drama-documentary about recent events in the town.
Another extension would be the right to privacy. Already this is a subject for debate between celebrities and the popular press. It is, however, something that is currently attracting widespread public support in Britain following the death of Princess Diana. In future I believe that we will come to expect to be able to protect our privacy from unwelcome intrusion. This might, for example, extend to the right not to have one's privacy disturbed by telephone sales companies, or even direct mail advertising.
It is, perhaps, in this area that the most significant developments have take place in recent years. It is also the are where there are significant cultural differences in the approach adopted by different countries. Some countries, notably Norway and Sweden, have a long tradition granting citizens rights of access to official information. Others, such as the USA, France and Australia, have introduced freedom of information legislation in more recent times. Still others, and here I am thinking particularly about Great Britain, have a long tradition of official secrecy. But even here there are signs of change.
As individuals in Britain we have been given the right of access to some of the information held about us. In addition to the right under the Data Protection Act to see the information that is held about us by a corporate body, we have the right to gain access to our medical records and to the records that social services keep about us. So far, these are limited examples. We are likely to see the range of specific cases extended to, for example, student records held by academic institutions or to the personnel records held by employers.
We in Britain are also extending steadily our rights of access to government information. We do not yet have a general freedom of access to information law. Instead we currently have a code of practice on open government. This does not confer any rights on anyone but it is serving to demonstrate that wider access to information does not bring with it the total collapse of the government machine. Partly as a consequence, few of us would doubt that freedom of access to central government information is getting closer all the time and the process has been accelerated by the present government's stated intent to incorporate the European Convention on Human Rights into British law.
In other countries, such as Australia and the USA, the principle of freedom of access to government information is steadily being extended through the exercise and interpretation of existing legislation.
In Britain we already have a fairly powerful right of access to local government information. Some research my colleague Jane Steele carried out recently for the Department of the Environment showed, however, that it is not enough to give people a right, local authorities need to work quite hard to develop a culture in which such rights are readily exercised (Steele, 1995).
Access to government information is only part - albeit an important part - of the picture. We also need rights of access to a wide range of other information. We need, in particular, a considerable amount of information in order to function effectively as consumers. We need to know what goes into our processed foods, how much electricity a washing machine consumes, how much fuel a car will use. In most cases, it is in the interests of the producing company to provide this information and, what is more, to provide it in standard formats so that comparisons can easily be made.
But what about the information that manufacturers do not want us to see: hygiene reports on food processing plants; what level of pollution the washing machine produces; the car crash test reports from the Road Research Laboratory. In due course, I am sure that we will have a right of access to information of this kind.
We are also seeing public services in Britain and elsewhere re-engineered so as to provide a degree of consumer choice. And with this comes a requirement to provide information to give consumers choice. So we have compulsory publication of school performance data; publication of hospital waiting lists; and housing authorities required to produce annual reports for their tenants. In a wide variety of ways, the public sector is providing information that citizens can use to make choices in our consumption of public services.
In the West, our thinking on censorship has for many years been dominated by a liberal tradition which places the greatest emphasis on freedom of thought and expression. There is a growing recognition, I feel, that the time has come to reassess this stance. We are beginning to see a challenge to the assumption that censorship is inherently wrong.
The basis for this, I believe, is the acceptance of the proposition that information is a powerful means of shaping and influencing behaviour. The concomitant proposition suggests that, in malicious hands, information can be dangerous.
One way to approach the issue is to view it from the perspective of the recipients of the information. Here there is general acceptance of the need to protect minorities from obnoxious information: racial minorities should not be exposed to racism; religious minorities should be able to protect themselves from information that incites religious intolerance. But attempts to protect minorities alone are missing the point. If we are to live together in harmony within society, we should not be trying just to protect the minorities, we should actually be attempting to protect everyone from the harmful effects of such information.
Or, one can approach the issue from the standpoint of the individual creating the information. An extreme example is paedophile pornography. It does not seem sensible for society to give a child-molesters the right to have unrestricted freedom of expression. A more mainstream example is an advertiser who purveys misleading information in order to sell a product. Again, it would not be sensible to give such an individual the right to mislead in such a way.
The question, then, is not whether we should draw the line on freedom of expression but where should we draw it. This is an issue that has all too often been obscured by an understandable desire not to appear repressive. We need to re-assess our position, perhaps starting from an assertion that the measure of a truly liberal democratic society is not its tolerance of extreme views and absence of censorship but its ability to regulate its affairs for the wider benefit of all. If this is so, then we could begin to have a much more rational debate.
We also need to consider the requirement to protect national and regional and, perhaps, linguistic cultures from depredation of a dominant culture emanating from Hollywood. The concept of cultural ecology is one which is gaining ground - it recognises the damage that can be done by a dominant culture given the global reach of modern media. Recently the European Parliament has attempted to limit the amount of non-European originated programming that can be shown in cinemas and on television channels, although those attempts have been largely defeated by a small number of countries led by Britain. I suspect that we might recognise the error of our ways, but I fear that we will do so when it is too late to make good the damage.
The final set of intellectual rights is concerned with the right of access to information and advice services. This was the concern of the National Consumer Council twenty years ago and its importance has not diminished in the intervening period.
We have long passed the stage where any of us has the intellectual capacity to process all the information we need to function effectively within society. Individuals do not have the time to search out all the information they require. Even if they could find it all they do not have enough time to read or view it and to digest it sufficiently. But time is not the major problem. Few citizens have the skills or the contextual subject knowledge needed to analyse and interpret the information that is available. Individuals may be able to in a small number of specialist areas, but how many people feel confident about, for example, assessing the carcinogenic risks associated with any one of the food additives that are commonly used, or deciding on the basis of waiting list information which is the best hospital to attend.
We need a network of easily accessible information services that help us to perform these tasks. They should collect the information we need as citizens of complex societies, making it readily available and ensuring that it is up-to-date. They should process the information, adding value to it so that it is easily used by people who cannot afford to spend much time doing so. This is a logical extension of the role of public libraries and I would expect to see the information role of public libraries becoming increasingly important in the future.
These information services do not necessarily need to be based on buildings. The various consumer associations have been performing most of these functions for many years using print media - and their magazines attract very large audiences indeed. Increasingly such organisations are turning to electronic media to publish the information. The key requirement is independence: the services must be seen to be independent of, and beyond influence by providers of the products and services they review.
To supplement the information services, we require a network of advice services that will help individuals to interpret the basic information, to tailor it to fit their particular circumstances and to recommend a particular course of action. In some circumstances, these services should be prepared to go further and to take action on behalf of individual citizens or communities.
Rich people have always used privately-provided services of this kind in the form of lawyers, accountants, financial advisers and so on. Poor people have been forced to rely on less well-resourced services . In Britain we are fortunate in having a very well-developed network of more than 3,000 independent information and advice services. Citizens Advice Bureaux form the largest network but they are only part of a much more extensive pattern of services provided by the voluntary sector with financial support from central and local government.
Arguing within the context of the European Union, Professor Yves Poullet of the University of Namur has advocated a universal right of access to such services on the grounds that freedom of information rights are of limited value without locally-provided services to support them. His suggestions will, I believe, gradually become a basic element in the collection of intellectual rights.
Before considering the nature of the responsibilities that are emerging within the information societies, we need to take note of different legislative and philosophical traditions.
In America and most of Continental Europe there is an enduring legacy of individual rights enshrined in a written constitution that can be traced back to the political philosophies that led to the American War of Independence and the French Revolution. This strongly influences the structure of legislation which confers on individuals a set of rights which they can then exercise in their dealings with the state. Thus we have the European Convention on Human Rights and the written constitutions of most European states.
In Britain we have tended to organise our affairs differently. Despite the best efforts of a series of reformers - from Tom Paine right through to the Charter 88 Movement - our governments seem to have had an in-built aversion to individual rights, although the present government's proposals to adopt the European Convention may be a sign that this is changing. Instead, successive British governments have conferred duties on the state and on corporate bodies. Thus, we do not have a right to information about school performance, instead schools have a duty to publish it. There are some notable exceptions, the Data Protection Act and the Local Government (Access to Information) Act being two examples. And it might well be the case that the development of intellectual rights will serve to re-introduce the notion of individual human rights, particularly as we incorporate the European Convention into our legislative framework. In the main, however, Britons have few individual rights to information. As an aside, it is worth noting that, technically, we are not even citizens - we are still subjects of the monarch.
These different traditions apart, it is possible to identify a range of responsibilities that are becoming accepted as common features of information societies no matter what their past traditions.
Government has three sets of responsibilities in addition to its general responsibility to ensure that all the rights that are enshrined in legislation are enforced. They are: reactive - it must provide access to information when asked; pro-active - it must collect and make available information that is in the public interest, and supportive - it should support the development of the information sector.
The state, within an information society, has a duty to provide access to information about its workings and decisions. If citizens have freedom of information rights, so these must be balanced by the responsibility to make access a reality. The government, therefore, is required to respond to requests for information promptly and constructively, making information and data available fully and at minimal cost.
The issue here is one of accountability. By providing access to the information the state is enabling its citizens to ensure that the state can be held accountable for its actions. This is the rationale that places freedom of information at the heart of the requirements for a functioning democracy.
But the state should go further than simply reacting to requests for information. It has a responsibility to collect and process information that is in the public interest. It may collect information to enable citizens to make choices about the public services they receive: the publication of school performance data or information about hospital waiting lists would fall into this category. It may collect information where, on efficiency grounds, it makes sense to have a national collection system: national mapping and geographical information systems are a case in point. The state also has a responsibility to publish information that is collected primarily to assist the functioning of the government machine: the publication of unemployment, or international trade statistics are examples here.
Through exercising these responsibilities, the state can do much to support the information sector of the economy. Instead of undertaking all the publication itself, the state can work in collaboration with the information sector, making data and information available for processing and further exploitation by the information industry. In this way the state can do much to strengthen a key industrial sector within an information society.
The state's responsibilities for support of the information sector, however, go much further. There are many areas where real demands for information will remain unsatisfied if we rely solely on market forces. In Britain, for example, there is clear evidence to show that there is substantial and growing demand for advice on a wide range of problems faced by people in their daily lives - the Citizens Advice Bureaux service alone dealt with over 6 million cases in 1996, more than one for every ten people - yet most of the people using the services lack the financial resources that would be needed to obtain the advice from lawyers, accountants and other private-sector agencies. The state has a responsibility, therefore, to finance the provision of public information and advice services that are free at the point of use.
The state is also responsible for licensing and regulating the information sector to ensure that commercial interests do not contravene the public interest. It may, for example, be necessary to prevent the exercise of monopoly power by restricting cross-media ownership, or by licensing access to radio frequencies.
Clearly, despite the importance of the private sector in the development of our information societies, the state has a number of important responsibilities to exercise.
The responsibilities of organisations are fundamentally concerned with choice and accountability.
Organisations of all kinds must accept the responsibility to make information available so that consumers can exercise a choice over the products and services they consume. Sometimes this comes easily - most organisations readily provide information through advertising. In other circumstances, the full provision of information can be detrimental, particularly when competition is fierce.
It is seldom sufficient for organisations to retain full control of the information they make available. Consumer information really becomes valuable when it is presented in consistent, comparable forms. The individual organisation may, therefore, be required to present information in a standardised format, as with food labelling or the fuel consumption of cars. In other cases, the information may be compiled independently by a third party and published in a comparative format so that consumers can evaluate what is on offer.
Throughout, there is a responsibility to ensure that the information is clear, accessible and readily understood. This, however, is a responsibility that is all too frequently ignored as anyone can discover simply by trying to obtain a statement of the conditions that apply to a mobile telephone subscription.
Organisations of all kinds need to be held to account and they have to provide information to facilitate this. In some cases, this principle is well-established and the means of providing the information generally accepted: companies are required to present their financial information in standard formats to give shareholders and others an unbiased picture of what is going on. Such responsibilities are likely to be extended considerably in the years to come. Organisations will be held accountable for their use and abuse of the environment, for example, and will be required to publish the results of environmental impact audits. Public sector bodies of different kinds are already required to publish performance data to provide a degree of accountability.
Individuals may have intellectual rights but they cannot escape their responsibilities within an information society. Principally, they have a responsibility to ensure that they are well informed.
This responsibility is not new. Ignorance of the law, for example, has never been a defence against a prosecution and the basic principle of consumer law is still caveat emptor - let the buyer beware. What we are likely to see, is a greater emphasis on the individual's responsibility to know what they are doing. And as more and more information services come into existence, so it will become more difficult for individuals to avoid the responsibility to use the information.
There is a general responsibility on the information industry to satisfy demand and to do so within the constraints of the law. But this is simply a question of good business in the case of the private sector, and a matter of basic purpose for the public sector information providers.
There are, however, a number of more specific responsibilities, many of which are likely to develop considerably in the years to come. The first is the responsibility to be accurate and truthful. In Britain, in common with many other countries, we have a code of practice for the advertising industry which requires companies to be 'legal, decent and truthful'. We also have codes that require television and radio broadcasters to present 'balanced' programmes, although the nature of the balance is open to much debate. Few other information providers operate under such constraints.
As information becomes more and more important within society so, I believe, we will see increasing pressure to ensure that information is accurate and reliable.
Information providers are under a general duty of care but this is loosely defined and difficult to enforce other than in specific circumstances. If a financial adviser in a bank, for example, gives a customer inaccurate information and the use of the information leads to a financial loss, the customer stands a reasonable chance of a successful legal action. But what is the position if someone loses money through the use of inaccurate, or out-dated information in a database? Does the caveat emptor principle apply, or is the database producer responsible. Increasingly, I think the responsibility will be shifted onto the information provider.
We may also see increased pressure for information providers to take responsibility for the social acceptability of the information they publish. The pressure for some form of censorship on moral or other grounds is, I believe, very likely to increase. The result may be legislation, in which case, information providers will simply have to conform with the law that applies in the particular country in which the information is made available. Information providers may prefer, on the other hand, to accept a collective responsibility as some Internet information providers have done recently.
It is important to question whether or not the benefits associated with the introduction of these new rights and responsibilities outweigh the costs. Indeed, cost is one of the arguments that are put forward by those opposed to such developments.
As with all cost - benefit debates, the answer depends on how one defines one's terms and, in particular, how one defines the benefits that arise. Most work in this area has focused on the costs and benefits associated with the introduction of freedom of information legislation. Here the picture seems to be clear. Guida, writing about the situation in the USA (Guida, 1989), Hazell who looked at freedom of information in Australia, Canada and New Zealand (Hazell, 1989) and Clark who studied the position in France (Clark, 1986) all concluded that the benefits far exceeded the costs.
In each case, they found that the actual costs were much lower than had been forecast at the time when the legislation was being prepared. They also found that the benefits were perceived to be significant by all parties affected by the legislation: ministers, civil servants, pressure groups and individual members of the public. The conclusion was that the general improvements in accountability and in the effective operation of the machinery of government were extensive, while the costs of administering the legislation were small (Roberts and Rowlands, 1991).
It is not possible to draw exact parallels with other rights and responsibilities that have been introduced over the last few years but the general picture appears to be the same. The cost of policing the Data Protection Act in the UK, for example, is relatively small - less than £4 million in 1997 (Data Protection Registrar, 1997). In addition there is the cost of compliance by organisations, including registration fees that in 1997 amounted to over £5 million. As an aside, it is interesting to note that the government, therefore, generates an income of over £1 million through the operation of the Act. Against this should be set the general benefits that result from the protection of personal data. Whether this is a small price to pay or a large one depends, of course, on one's perception of the importance of data protection.
A full assessment of costs and benefits would also need to take into account the need to comply with a system of rights and responsibilities that are reflected in the world trading order. Any country that fails to comply with the international norms faces the loss of trade that would result.
We are in the early stages of a period of considerable social, economic, cultural and political upheaval. The industrial age is being replaced by the information era and countries of all kinds are striving to create information societies. Part of this process is the development of new forms of rights and responsibilities that will shape and define the nature of the societies within which we will live in the future. Such rights and responsibilities are, I believe, so fundamental to the effective operation of societies that depend on information for their prosperity that their existence can be regarded as a defining characteristic of an information society.