Technology is great, it has helped countless industries in plenty of innovative ways. The digitization of the 21st century has revolutionized how people work and increased efficiency. Even lawyers, a profession that has largely pushed back against the tide of the changing times, have embraced law firm software to help with organizing their legal documents. However, technology isn’t all candy and roses. Along with new technologies, come new regulations.
Since the GDPR (General Data Protection Regulation) came into effect in 2018, it has affected how data is being protected. Some users might look at it as a hassle, having to accept certain cookies or permissions in order to access certain sites, but others find the GDPR a basic human right. We should be able to decide how much is shared and any infringement on that right should be a blatant disregard for the law.
The implementation of big data and its uses
Perhaps the problem wouldn’t be such an issue if big data has not become monetized the way it has today. Big data is and remains a very important factor when it comes to research. Projections predict that big data will continue to be a part of our digital landscape, whether in terms of online marketing, ad targeting, or even product development. Knowing what consumers want and meeting that need or projecting what the next trend will be is something that is both revered and feared. Companies will become heavily reliant on big data and create only for the demand, which in the long run, might seem like an efficient most of consumerism, but it might also create a deficit and monopolize a market in ways that wouldn’t have happened if big data weren’t the leading factor in determining what gets made and produced.
Where the law comes in
How you use big data is cause for legal concern. It isn’t just about data collection and whether proper disclosure was given. When the FTC (Federal Trade Commission) first addressed issues regarding big data, it was in regards to the use of big data instead of how it was collected. This has caused a ripple effect in how big data is viewed. According to PR practitioners, data should be used to inform and not dictate or influence.
While the law is slowly covering exposed parts of the vulnerabilities that big data pose, big data is also changing the law with its inner workings and it will challenge the age-old fundamentals of what is right and wrong. Afterall, big data is based on solid evidence, whereas law has always been an abstract idea of how things should be done and why. It isn’t scientific, but more or less, based on humanity’s current views. In archaic cultures, the law continues to protect aggressors, and victims are never given the justice they so deserve – for instance, the law in Malaysia allows rapists to marry their victims in an attempt to make it up to them’ and to serve their penance. Is this justice?
Across the board, we are seeing both clients and regulators demand the use of technology. For clients, applying technology drives down the cost associated with these proceedings and limits the amount of information required for production. For regulators, it allows them to see key material faster and using fewer resources. Furthermore, there is empiric evidence (in mainstream litigation versus competition work) that technology can be more consistent and accurate than human review.1
In France, legal technology is not used as widely as in the US or UK. However, French lawyers see clear benefits to using technology in merger control and dawn raids. In the latter, technology needs to be deployed early, as the FCA seizes entire mail boxes before extending a fairly short time frame for lawyers to complete a privilege review ahead of their own review. Speed, therefore, is really of the essence. Unlike many other jurisdictions, there are no requirements for internal document production on the filing form itself and that really only comes into play later on in proceedings. However, it is accepted that as data volumes continue to grow, technology will be a necessity to ascertain risk for these matters, regardless of the regulatory burden.
In the UK, the technology-agnostic CMA is increasingly making use of its formal information-gathering powers. Those powers are also being used at varying stages during the process “ including working to establish evidence for an alternative counterfactual or a theory of harm claim. Parties similarly use technology at the back end regularly to formulate their strategy in response to these growing requests.
The constant across both jurisdictions (and likely others) is the use of technology to speed up the privilege review. Automating the workflow in its entirety is risky, but the technology can significantly accelerate human review.
What is considered responsive plays a large role in the documents produced in these proceedings. These decisions will have an effect on how and what data is collected and shared. Whilst the CMA retains significant control on the determination of responsiveness (described in more detail below), the European Commission takes a more balanced, collaborative approach, often engaging with lawyers and technologists.
How this affects public relations
Data research, whether manually, or through artificial intelligence filtered big data results, have always been a part of public relations. Technology has simply made it more accessible, and accurate. This isn’t something that was expected, but because of this technology, we can easily target as well as easily receive relevant advertising material shown directly to us. Efficiency aside, the law recognizes that having this insight might be an infringement of privacy and new regulations and new rules continue to pop up and evolve with the changing times.
Public relations companies will have to adhere to these regulations, and as mentioned above, this might be as simple as installing a disclaimer and enforcing the fact that viewers have accepted for their data to be recorded by continuing to browse the website. Transparency always wins, in the eyes of the law, and agencies will do good to abide by that code.
The ethical dilemma of big data
Moving forward, we will need to draw the line between data mining and the ethics that revolve around big data. It is believed that by continuing to allow corporate bodies to mine our data, we’re essentially kissing our privacy goodbye but that isn’t the case. Your private details will continue to be private, but it’s your identity that is at risk. Doco-series such as Netflix’s The Social Dilemme shows how these companies not only steal our behavioral patterns, but continue to perpetuate it and groom us to continually consume more and more content, or spend more money. Who can stand for these levels of subtle manipulation? Should we have to give up our own identities and allow corporations to dictate who we are, what we should buy, what we should watch? It is no longer a matter of innocent data harvesting but of a gross exploitation by the system which is why laws are important in order to protect the vulnerable from being further exploited.
