Consumer data is big business. Leading aggregators like Acxiom, Experian and others make hundreds of milions each year, but the individuals about whom this information pertains don’t get a penny. In legal terms, we have a right of privacy in order to prevent harm but no corresponding right of publicity to ensure benefit from our profiles in the datascape.
Because business and government make decisions about individuals based on the personal information about them stored in databases, society’s protections have focused on restricting the collection and disclosure of that information and ensuring its truthfulness, largely to prevent institutions from making harmful decisions, e.g., about job offers, insurance rates, bank loans etc. on the basis of incomplete, outdated or erroneous data. Accordingly, the rights that individuals need—and are increasingly getting–are notice that the institution is collecting information, an explanation of the uses to which the institution will put that information, access to the individual record in the institution’s database, the ability to correct inaccuracies in that record, etc.
Designed to protect the individual from harm, the privacy framework does nothing to ensure the individual can benefit from her personal data. That’s a matter for tort law, and decisions in that arena have largely denied consumers any interest in the exploitation of the own data for their own benefit.
The tort of appropriation occurs when one “appropriates to his own use or benefit the name or likeness of another.” For an appropriate tort to be actionable, the likeness must be complete and generally recognizable. Consumer profiles in the datascape are never complete—they’re always partial by design—and the courts have upheld the tort of appreciation only for celebrities. Similarly, the right of publicity—to own, protect and commercially exploit one’s own name and likeness—has been confined to celebrities.
In fact, the courts have ruled that the individual’s personal information has no commercial value. Specifically, American Express was exonerated for selling its card-members names to merchants because “an individual name has value only when it is associated with the defendant’s lists.” That is, the aggregator by compiling and categorizing our personal information had created all the value.
Since aggregators are not alchemists, however, the value of the individual data they aggregate cannot be zero. Accordingly, some legal scholars have argued that the value of the individual data is determined by how much it takes for a person to relinquish it. Since millions of us readily give up our information for supermarket discounts, ring tones and other trifles, its value to us must be low, they argue and then conclude that we’re already adequately compensated by the marketplace.
I don’t think it’s adequate and hope some clever entrepreneur figures out a way for me to get a bigger piece of the consumer information business. After all, I generated that data, it describes me and I’d like to get paid for the use of my likeness.
Len Ellis 