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Description
The goal of the project is to illuminate the mechanisms through which private law – civil law, economic law and privately made rules in contracts – facilitates the development of the data society. The project is of high theoretical significance – these mechanisms have not yet been accounted for in the legal scholarship. Dynamic developments of data collection and analytics technologies, as well as widespread reliance on devices and services generating data as a “byproduct” a commotion in legal scholarship. Legal academics wrote a lot about how the law should react to the changes in technology, in order to safeguard values like privacy, autonomy or security, while at the same time not hinder efficiency or social innovation. Such an approach posits law as a reactive force, which must respond, “keep up with” the technological changes happening, supposedly, in no connection to the law itself. This project takes a different approach, putting forward a hypothesis that private law – together with economic and technical factors – constitutes a creative force, contributing to the development of the data society.
In order to test this hypothesis, this project will seek answers to four specific research questions. First, how are the concepts of “data” and “information” used in legal and political discourses, and how two replace these ambiguous terms with categorizations increasing the explanatory power of legal language? Second: what are the contents of privately made norms governing social relations concerning data, stipulated in terms of service and privacy policies of online platforms and mobile apps? Third: what principles of private law stand in conflict with what principles of the personal data protection law, and how the former can legitimize widespread collection of data about persons? And fourth: what questions regarding the future of the law governing the data society are legal, and what are political?
Summary of project results
We live in a world where significant parts of our lives are mediated by technology. We have apps and online platforms for communication, work, shopping, transportation, entertainment, and even meditation or dating. These tools are designed to collect as much data about us as possible as a “by-product” of our use. Data about our behaviour is then analysed in the context of data on millions of other people and used to profit from it, often at our expense. This creates a policy issue: is the law successfully managing the potential harms stemming from ubiquitous data collection and use, and if not, how should it be changed? However, there is also a theoretical issue: what role exactly has the law played in the emergence of the data society?
“Private Law of Data” was a legal academic project realised at the Faculty of Law and Administration, Jagiellonian University in Krakow, Poland. It aimed at documenting how private law (contract law, consumer law, etc.) and privately created norms (terms of service, privacy policies) contribute to the emergence of the data-driven society and to analyse how the law could and should respond to these changes.
In particular, the Project addressed four research questions: (1) how to improve the legal typology of “data”?; (2) What are the contents of the privately made "data law", i.e., rules governing data collection, analysis, sharing and usage by private corporations, stipulated in terms of use and privacy policies of online services?; (3) What principles of private law and personal data protection law are in conflict?; (4) What differentiates the political and legal questions concerning the potential reform of data law?
The novelty of the approach stemmed from (a) the assumption that law is not only a reactive force but also a creative one, co-creating the socio-technological reality, and (b) combining theoretical research with empirical data analysis. As a result, the project contributed both to legal scholarship (by identifying previously unnoticed normative and empirical relationships) and to the development of social knowledge about the sources, nature, and possible solutions to the problems arising from the mass collection and use of data.
The project lasted 36 months, employed three young researchers from Poland, created nine scientific articles (seven already published), eight chapters in monographs (seven already published or publicly accessible), two databases, and two book proposals (one book already published). To generate these outputs, the project team engaged in research tasks and activities necessary: the analysis of literature on law, data science, or marketing; the analysis of legal material (statutes, case law, terms of service, privacy policies); data curation (tagging of documents); data analysis (qualitative and quantitative); creative tasks aimed at coming up with novel concepts and solutions (brainstorming, workshopping); deliverables drafting and publishing process. In addition, the project engaged in many tasks aimed at including various stakeholders: weekly open meetings, an online webinar series with experts from all around the world, team participation in conferences and workshops, and popularisation efforts through the website, social media accounts, and various events.
“Private Law of Data” was a scholarly project in basic research; hence, its main beneficiaries were the members of academia, and its primary outputs were concerned with contributing to the knowledge in the field of private law and data law. In particular, the project accomplished the following: (1) Enriched the law’s conceptual framework by highlighting the inadequacy of the binary distinction between personal and nonpersonal data and proposing a new concept, namely “data about humans”; (2) Documented market practices and the practical role of private law in legitimising data collection, through the creation of two databases containing described service regulations and privacy policies, as well as analysis of the contents of these databases; (3) Demonstrated contradictions both between the principles of private law and personal data protection law and within the various justifications for private law, particularly in the transatlantic context; (4) Surveyed possible legal solutions, showing which are legal and which political in nature. Consequently, the Project has benefited academia through expanding the frontier of research in the area.
However, the Project’s outputs also benefit the range of actors in civil society. In particular, the outcomes can be useful for: the lawmakers, who now have a better understanding of the intricacies of the data economy and its associated problems, and so are better equipped to engage in legal reform; NGOs fighting for consumer rights (for the same reasons); good-willing corporations, who would like to advance their positive social impact, as they can benefit from the overview of good and bad practices; and the public at large, who can benefit from this knowledge being popularised by the Project team or others. Finally, the Project has benefited the young researchers who participated in it and who, through mentoring and learning-by-doing, advanced their skillsets and career prospects; the host institution (Jagiellonian University) benefitted from the interdisciplinarisation and internationalisation of its research; and Polish academia at large (for the same reasons).