openDemocracyUK

Informed consent

Rob Killick
2 December 2009

This is the start of an occasional OurKingdom series on the Principles of Our Age. From privacy to openness, these could be understood as the essential underpinnings of a meaningful 'modern liberty'. Suggestions are welcome - use the Contact and Submit an article links above, marking your submissions as for the attention of OurKingdom.

There are many good reasons why both governments and businesses may want to capture, analyse and share data. Good in the sense that the intention is to create mutual benefit for all concerned. In some ways we would like digital marketing, for example, to be more targeted, if only to avoid the torrent of spam email inflicted on us. The gathering of statistical information by governments can also be used to plan service provision and state investments in a more rational way. So I do not take the view that any data gathering is inevitably an unwarrantable intrusion into privacy or that governments and big business or even charities are only out to get us and should always be stopped.

However, while the interests of data gatherers and those whose data is gathered (datees perhaps?) may be mutually congruent, they also may not be. This obvious fact becomes ever more important now that we leave growing electronic data trials behind us. On phones, e-mail and internet browsing, this is certain to grow as more public transactions are completed in digital forms.

In addition governments have an inbuilt, secular tendency to gather information for its own sake. This is exacerbated by the way politicians and others in the state apparatus become more isolated from their constituents than before or more aware of this as public claims become more effective (in part thanks to the information revolution). In wishing to connect or reconnect they are very keen on gathering as much information about us in as many ways as they can. Their insecurity also inclines them to want to police society more closely, hence current attempts in the UK for the state to have access to all the electronic data held by phone companies.

However complex the discussion around data sharing and privacy becomes there is one principle that should be adopted as a benchmark of what should and should not be allowable. This is the principle of informed consent.

This principle means:

  1. No data should be collected or retained on anyone without their having agreed in advance that it should be.
  2. No data so collected can be communicated to any other person or organisation without the knowledge and permission of the person concerned (the datee).

The principle of informed consent is implicit in any democratic society. If we need a legal definition of informed consent which we could apply to data gathering we can go to the Nuremberg trials of 1947:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

It should be informed because effective democracy requires people to understand what is being done to them and in their name. It should involve active consent because that is the essence of democratic government.

In practice this should mean that any information in data form should only be stored or shared with the prior active consent of the individual concerned. There should always be an opt-in rather than an opt-out button. The onus is on the data gatherers and sharers to persuade and convince us if they want to keep or use the information they hold about us.

This approach to data is grounded on the principle that we are autonomous citizens; that our cooperation and consent with the state or with business should be active, conscious and open. Taken, therefore, with all the facts and if necessary after discussion and debate.

In that sense it is an approach which would contribute towards a broader democratic renewal.

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