In any case, legal requirements for a value-oriented model should not be inferior to the requirements for data processing in the current data protection regulations, specifically the GDPR. In other words, the recognition of data as a valuable good from a data subject perspective, should not substantially affect the development of the right to privacy or the extent of the informed consent; on the contrary, it should be focused on strengthening them in a way that creates awareness and seeks to overcome the biases and impasses explained by behavioral economics.
There are several advantages in the approach of providing value to the data to the benefit of the data subjects. From a competition point of view, the value-oriented approach provides better tools for controlling the activity of data processing. In the same way, the value approach is clearly market-oriented, thus it can have beneficial situations for consumers.
Companies will be encouraged to provide better and more competitive services; contrary to the current scenario, where users download products and use services without necessarily considering their quality. But more importantly for the behavioral-oriented approach of this work is the awareness that the value-oriented approach may create in the data subjects.
The behavioral economics situations previously analyzed benefit from a value-oriented approach. Indeed, tackling these issues as a whole may be done by relying on the awareness of the value of the data and the possibility of disposing of it, which makes the users mindful of the loss that implies a transaction, and leads them to give more weight to the loss of data than to the reward. In the same way, the loss aversion derives from a more protective use of the self-serving bias. Furthermore, the bargaining impasse, where users believe in the fairness of their position in a transaction, certainly requires the possibility of having something to be bargained.
Several theoretical approaches have tried to change the perspective of the data protection model to orient it toward a right to property of the data subject.
It is interesting to note that critics of this model are based on the dangers of allowing consumers to treat their data as commodities, without being properly informed and having information disparities with the processors. Although implementing a right to property of the data seems to bring control to the data subject, the whole concept of property lays on nebulousness and theoretical difficulties marked by endless conceptual disputes is property an interest or a dominion of a thing?
The classification of the type of data that may be subject to property may also present different problems. Indeed, several authors, especially in the medical field, have acknowledged the importance of certain types of data to be part of comprehensive databases for public health and safety.
Also, the recognition of the data subject as the owner of the data may not be completely effective. As stated by Professor Barbara J. Nevertheless, there is resistance from maintaining a control-oriented approach since the informed consent, the most important tool for this matter, has so far proved to be ineffective in practice.
Cartwright, E. Camerer, G. Judgments influenced by System 1 are rooted in impressions arising from mental content that is easily accessible. In a general way, it is safe to say that one of the main threats to the right to privacy in the activity of data processing is the ignorance of the losses that the unlimited processing of data entails for the data subject. Branson, C. Bohnet was born in Switzerland in
This situation, greatly influenced by the lobby and economic objectives of both public actors and businesses, arguably rests on the lack of consideration of other scenarios and perspectives. The proposal of this contribution is to consider some of the alternative perspectives, which may provide mechanisms that empower the data subjects. The field of behavioral economics, which takes into account psychological considerations, can be a valuable tool for this purpose.
More importantly, a change to a behavioral-oriented perspective has as its main objective, to shape a desired behavior on the users, in the sense of creating a truly responsible data subject that can take informed decisions over the data. This work supports the idea that a more user-friendly way to provide information can be a strong mechanism to empower the data subjects, and that initiatives such as a Creative Commons, offer interesting examples.
On the other hand, a model that allows unified data management and provides a tangible value to the data should encourage the data subject to consciously choose the purpose of such data. For this to happen, the data subject must be fully aware of the type of data, the purpose of the processing, and the retribution received for the processing.
The proposal of this work, although specifically focused on creating tools of control, does not aim to create a property right on the data subjects, considering that this measure, in itself, may not be enough. In other words, the approach of this proposal seeks to be practical, relying on the need of control of the data subjects, based on the privacy values that drive the data protection field, and the fact that the data acquired the characteristics of a valuable commodity.
In any case, the previous contribution should be understood as a proposal to change the direction in which the activities of data processing have been so far oriented. The new direction that the current online scenario demands must be oriented to the benefit of data subjects and recognizing the actual conduct and behavior of the users of the internet.
See: Bygrave, L. London: Oxford University Press, pp. The American Journal of Comparative Law , 37, pp. The Right to Privacy. Connecticut Law Review, 32, See: Johnson, B. These polls will be discussed in Section 2. Data Protection Eurobarometer-Factsheet. European Commission.
See also Madden, M. The Yale Law Journal , , p. Warren, S.
Whitman, J. Reciprocal privacy: Towards a transatlantic agreement. Federico Fabbrini Ed. Cheltenham UK: Edward Elgar, p. Treating Consumer Data like Oil.
Federal Communications Law Journal , 67 2 , pp. Who Speaks for the Consumer?
American Bar Foundation Research Journal, 2, p. For empirical investigations about the value of data for consumers, see: Aquisti, A.
In Lane, J. Cambridge University Press.
Advances in Behavioral Economics (The Roundtable Series in Behavioral Economics) [Colin F. Camerer, George Loewenstein, Matthew Rabin] on Amazon .com. Twenty years ago, behavioral economics did not exist as a field. Most economists were deeply skeptical--even antagonistic--toward the idea of importing insight.
Madden, M. Brown Ed. London: University of Oxford. For more information about the privacy paradox, see: Zuiderveen, F. University of Amsterdam Digital Academic Repository, pp See also: Monteleone, S. Syracuse Journal of International Law and Commerce , 43 1. Brussels: European Commission.
Oslo: University of Oslo. Appfail: Threats to Consumers in Mobile Apps. Oslo: The Norwegian Consumer Council, p. Koops, B. Edwards, L. Allen, A. See also: Op. Zuiderveen, F. Bygrave, L. See: Laberge, C. Victoria University of Wellington Working Paper, pp. See also: Tucci, L.
Putting a Price on Information: The nascent field of infonomics. USA: Hyrax Films.