Out-Law Analysis 2 min. read

Cookie law disaster should force companies to emulate patent world lobbying, says expert

OPINION: UK authorities are  beginning tentatively to enforce the cookies law and, after the compliance panic of the past month, companies can now sit back and examine where the fault lies for the development of such a poor, troublesome law.

The business world, and in particular the advertising industry, failed to make its voice heard on cookie laws and didn't do enough to protect its own interests.

The whole debacle should be a warning, because another fight is coming, and it is one that the business world cannot afford to lose. The European Commission has already published plans for reform of data protection law, and parts of it make for sobering reading. If this proposal is not significantly amended it will have negative effects on the use of innovative technologies, including cloud based solutions.

Laws should balance competing interests but when it came to the cookies law businesses did not do enough to make their voices count. If businesses fail again when it comes to data protection reform then unworkable and burdensome laws will be the price they pay. In this gloomy economic climate that is a price we as the greater European community can ill afford.

Of course commercial organisations conducted some lobbying around the cookies law, but it clearly didn't work. So where can they look to for guidance on how to better protect their interests?

They should look at the world of patent law. As with data protection laws, patent laws strike a balance between a social and private good –access to knowledge on the one hand and the interests of business in monopolising innovative ideas on the other. The end result, though, is very different.

If business is going to emulate patent-dependent companies and make its voice heard on data protection reform then commercial organisations will need to learn how those companies pushed forward their agenda.

Patent-dependent companies make their voice heard by consistently doing all they can to explicitly draw a connection between patents, innovation and broader effects on the economy. For example, Microsoft Corporation has repeatedly articulated the value of patents in terms of the wider economy whenever calls for submissions on the health of the patent system by international and government organisations are made. On one occasion (6-page / 446KB PDF) it stated that “the available empirical evidence suggests that strong IP systems can have a significantly positive impact on trade flows and FDI [foreign direct investment] benefitting developing countries.” On another that "the current UK intellectual property system is fit for purpose, and supports one of the world's most vibrant markets for technology, creativity, innovation and growth, among a wide spectrum of companies and industry."       

The end result of this is not always ideal. Innovation has won out against individual rights sometimes to a troubling degree. Patents that protect medical tools, such as those held by Myriad Genetics in relation to cancer treatments, restrict access to diagnosis and consequently treatments for individuals for people who desperately need them. Yet, court after court has found this trade off to be morally acceptable in order to encourage investment in innovation in these medical processes on the basis that it will eventually benefit society on the whole.

But the techniques used by companies in this field can, and should, be copied when it comes to upcoming data protection reforms. Those reforms must not be allowed to be considered by politicians in a way that disproportionately takes account of privacy campaigners' concerns at the expense of business interests, as happened during the cookies law process.

Businesses must engage the media and arms of government more effectively. Like the patent lobbyists they must make clear evidence-based connections between the value of innovative technologies dependent on the use of personal information and the benefits these technologies bring to society.  

Only if they do this will we see a better balance between society and business interests in the data protection reforms than we did in the irritating, burdensome and prescriptive cookie law reforms.

Luke Scanlon is a technology law specialist at Pinsent Masons, the law firm behind Out-Law.com

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