Big technology’s duty of care

Imagine you have a serious and embarrassing medical condition, or need financial or legal help to get out of bankruptcy, or help with a painful divorce. You go to visit your doctor, financial advisor or lawyer, where you explain your problem in detail to get advice and help. Now imagine that you later realized that this is not a private conversation with a trusted professional. In fact, they have been recording your conversation and selling the data to anyone who is interested and willing to pay, especially advertisers.

Everyone is rightfully angry about this.To prevent this kind of abuse, we have something called ‘Fiduciary duty”. This is a legal concept that requires professionals in fiduciary positions to take care of their clients and always act in the interests of their clients, especially when they conflict with their own interests.

In many ways, our relationships with technology companies such as Google, Facebook, and Amazon are similar to our relationships with lawyers, doctors, and financial advisors. They all involve a direct contractual relationship, whether as a customer or a user. They also collect sensitive data about us and use that information to provide advice.In fact, digital platforms encourage us to share as much information as possible with them, including searching for your embarrassing health on Google, publicizing a painful divorce on Facebook, or buying ‘How to escape from Amazon’s bankruptcy book. Finally, power is one-sided. Technology platforms can monitor user activities, but users lack equal power.

But unlike lawyers, doctors and financial advisors, in the UK, digital platforms currently have no legal obligation to only use the information about you that they legally collect, process, or purchase for your benefit. This means that, for example, they can target users who are in financial distress through payday loan ads, or target gambling addicts through gambling ads.

“In many ways, our relationships with technology companies such as Google, Facebook, and Amazon are similar to our relationships with lawyers, doctors, and financial advisors. “

Fiduciary duties can supplement more restrictive rights already contained in data protection laws. Data protection legislation like this lays down rules on when data can be collected legally, and fiduciary duties apply when professionals have power over someone by being in a trusted position. This means that data protection legislation can cover areas that cannot be covered by fiduciary obligations, such as the behavior of data brokers. Unlike companies such as Facebook, data brokers do not collect data directly from Internet users—they collect data from a large number of other sources in order to sell it to advertisers.

But fiduciary responsibility is very important for companies that have a direct contractual relationship with users. If we apply fiduciary responsibility to technology companies, then companies will have fiduciary responsibilities to their customers. This will require them to put the best interests of users above their own interests in the event of a conflict of interest. This obligation does not prohibit companies from using their customers’ data to make profits. Small companies usually hold much less user information and therefore do not have the same privileged status and can be exempt from these rules. The exemption threshold can be based on the amount of user data held by the company, as well as the turnover, the number of employees, or the number of users. Any violation of these obligations may cause users to initiate legal proceedings against the company.

There are many types of fiduciary duties. Applying the concept of trust does not mean that we have to treat Google or Facebook like your doctor, financial advisor or lawyer. In fact, once legislation provides for general obligations, it is mainly our courts that deal with any violation of duties and obligations based on specific circumstances.

The new obligations will bring many benefits, including:

• If a company collects data for one purpose, it is generally not allowed to use the data for a completely different purpose or to transfer it to a third party who would do so.
• Online businesses are not allowed to conduct secret experiments on their customers in an attempt to change their emotions or behavior-something Facebook has done it in the past.
• Predatory advertising will be banned, such as payday loans for particularly vulnerable users or promotions on gambling sites.
• When applied to children, most advertisements will be regarded as not in the best interests of children, so children’s access to targeted advertisements will be limited.

Interestingly, some platforms already consider themselves as trustees.For example, Mark Zuckerberg recently statement That:

“Our idea of ​​establishing a trust relationship with people who use our services is intuitive. [Facebook’s] Our self-image and what we are doing is that we are acting as trustees and trying to build services for people…What makes this interesting is who can decide what conformity is in the legal sense or in the policy sense. People’s best interests. “

One of the defining characteristics of our 21^Yingshi Century’s existence is that we now share more information about ourselves with technology platforms, rather than sharing information with professionals who make fiduciary duties for them. It is time for the law to catch up with this reality.

Image: Pexels