Information and Common Law
| Date | 01 March 1991 |
| Published date | 01 March 1991 |
| DOI | https://doi.org/10.1108/eb027062 |
| Pages | 78-81 |
| Author | James Michael |
| Subject Matter | Information & knowledge management |
Information and Common Law
by James Michael
Discussions about 'data,' 'information', and 'communication' have a tendency
to become discussions about the world in general, and it is notoriously difficult
to establish clear boundaries. I think there are two reasons for this. The first is
that 'information' is an abstraction, although it often is expressed in concrete
forms.
The second, expressed as simply as possible, is this: the subject of the
discussion is also the medium of discourse.
Law is also an abstraction (although perhaps not as abstract as justice) which
is given concrete expression. So any discussion of 'law and information' is in
danger of being very abstract. But I will try to be as concrete as possible.
Before turning to concrete illustrations, I would like to suggest that the law
relating to information is the series of answers given by society to these
questions: who should know what, and when, and how, and where. Even that
formulation is insufficiently precise, because 'should' suggests three possible
legal rules about the communication of particular information: the law can
prohibit the communication, require the communication, or remain neutral. Of
course, law is not the only influence on communication of information; but it is
the only one considered here.
This analysis of the law relating to information is not really in the common
law tradition. The essence of the common law is its pragmatism and
particularity, with an aversion to broad concepts. The development of the
common law is by the reasoning of judges deciding particular disputes. The
basic method of reasoning is to decide a dispute in the same way that a similar
dispute was decided before.
Although it is increasingly common to speak of 'intellectual property', many
English lawyers still dislike the term. What, they ask, is this 'intellectual
property'? Is it an intelligent house, perhaps? A distrust of abstraction is deep
in the common law. And yet, common law systems are increasingly dominated
by the interpretation of statutes, and the statutory rights of intellectual
property such as patents and copyright are increasingly similar to those in civil
law countries. Data protection laws such as the British Data Protection Act
1984 resemble those in Continental countries, if only because they all must
comply with the Council of Europe's Data Protection Convention.
One aspect of common law on data is an entirely judge-made doctrine called
the 'law of confidence', which is the closest there is to a common law civil right
of 'owning' information. The other is the judicial interpretation of the statutory
application of 'theft' to information.
The law of Confidence
This doctrine is entirely judge-made, but it is not purely 'common law'; it
originated in the flexible approach of equity in the courts of chancery. Although
it was not the first case in which the doctrine was applied, the case of Prince
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