Data protection law is going through another revolution. Established in the 1960s and 1970s in response to the increased use of computing and databases, re-enlivened in the 1990s as a response to the trade of personal information and new market opportunities, it is now becoming much more complex.
New challenges are also emerging in the form of new technologies and business models, services, and systems increasingly rely on analytics, 'Big Data', data sharing,tracking, profiling, and artificial intelligence. The spaces and environments we inhabit and pass through generate and collect data from human behaviour. The devices we wear and carry with us, install in our homes, our channels of communications, sensors in our transport and our streets all generate more and more data.
Data protection frameworks may have their boundaries and new regulatory regimes may need to be developed to address emerging new data-intensive systems, new frameworks nevertheless provides an important and fundamental starting point to ensure that the fundamental strong regulatory and legal safeguards are implemented to provide the needed governance frameworks nationally, and globally, before we see ourselves the subject of data exploitation.
What is the problem
Protecting privacy in the modern era is essential to effective and good democratic governance. However, despite increasing recognition for and awareness of the right to privacy and data protection across the world, there is still a lack of legal and institutional processes and infrastructure to support the protection of rights. Some parts of the world in particular suffer from a void: a lack of regulatory and legal frameworks in many countries, and the poor implementation and enforcement in others.
As a result, innovations in policy and technology, private and public sector data practices, are largely left unregulated and unchecked, and this will have significant implications for rights of individuals, as well as for the development of the economies and societies.
There is also a systemic and structural challenge which is aggravating this situation. Decision-making and legislative processes are all too often not subject to any or only very limited public scrutiny.
What is the solution
Institutions, public or private, that collect and use your personal data must:
- be subject to rigorous regulations providing them with standards on how to handle any data they process;
- be compelled to be transparent and accountable;
- be subject to checks and balances;
- fulfill the rights of individuals
- respect the rule of law.
There are a number of a basic principles upheld by widely recognised codes, practices, decisions, recommendations, and policy instruments which provide the framework for effectively regulating the processing of personal data. However, it is essentail for the protection of individuals rights that a data protection framework is given the force of law.
Data Protection legislation must be carefully scrutinised to seek to ensure that the resulting framework is as strong as possible and not undermined by legal loopholes and exemptions. Once in force, data protection legislation must be accompanied by effective implementation and enforcement. This requires an independent regulator or authority must be appointed to ensure the law protection law is enforced, and it must have the mandate and resources to conduct investigations, act on complaints and impose fines when they discover an organisation has broken the law. An important safeguard is a strong and critical civil society, with the ability to raise complaints, research abuses and be constantly vigilant of implementation.
Furthermore, recognising the need for multi-disciplinary nature of such mechanisms, technological measures from the conception phase to the processing of data can support a regulatory framework to minimise data collection, to mathematically restrict further data processing, to assuredly limit unnecessary access, amongst other privacy measures. Such measures can be adopted by both companies and governments.The onus must be squarely on those processing our data to protect it both by design and by default.