Chris Rees, corporate partner, Herbert Smith
Google case highlights gaps in geoinformation law
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The recent Google case in Italy in which the internet company’s chief legal officer was convicted of a criminal breach of privacy in relation to online video (Google is appealing the conviction), demonstrates how important it is for businesses around the world to take proper account of the developing law of information.
The 19th century saw the development of rights and remedies in respect of moveable goods produced by the industrial revolution. The 20th century saw developments in the area of intellectual property as a result of the technological revolution.
Our own century, in which we see the flowering of the information revolution, will see the laws of information developing in radical ways to embrace the changing economic landscape. One such area in which changes are needed is in that of geoinformation. This is the information that can be linked to a specific point on the earth’s surface; it can result from land-based assessments or from aerial, and increasingly, space-based imagery.
Developments in photographic and digital means of collection and collation of this information, down to the level of centimetres, together with the opening up of space to private sector interests, means that a range of previously unaddressed problems are being raised for which lawyers need to find answers.
A group of lawyers working under the auspices of the International Bar Association have been studying this issue for the past couple of years. A project is now underway aimed at gathering the stakeholders from the worlds of computers, space and communications law to draft an international convention for regulating the uses and abuses of geoinformation.
The project, which is chaired by myself and Professor Kevin Madders of Kings College London’s Centre for Technology, Ethics and Society, is at an early stage but we have already succeeded in involving significant players such as Inmarsat, the European Space Agency, TomTom and CSR.
The tentative conclusions reached so far indicate that we will need to revisit the UN’s remote sensing principles that were adopted on the basis of the 1967 Outer Space Treaty. These principles were promulgated at a time when the only actors contemplated in space were nation states. They had not bargained on the ingenuity of companies such as Google or the entrepreneurship of individuals such as Sir Richard Branson.
This gap in the law needs to be filled. We will also need to have proper account of the military, environmental and humanitarian aspects of the geoinformation issue. So far, as the producers of geoinformation are concerned, we believe that there should be an in rem right to the subject matter they generate, matched by a counterveiling in personam right that will attach to any individuals who are identifiable from the information. In this way economic activity in the sector can be stimulated by producers having a bankable property right in the fruits of their work, while individuals around the globe will have the assurance that if their privacy is unreasonably invaded by the advent of this new source of information, they will have a remedy, and a tribunal, that can issue and enforce judgement in a timely and proportionate way.
It will be appreciated that this is a large subject and will require much careful thought before the workings of a convention can be documented. However, it is submitted that a properly articulated geoinformation convention would serve to avoid some of the difficulties that arose from the recent Google case and it would form a useful part of the emerging law of information that will eventually apply across all jurisdictions and all technologies.