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3637 - 06. Hu Ying - Private and Common Property Rights
3637 - 06. Hu Ying - Private and Common Property Rights
SAcLJ 173
HU Ying1
LLB (The University of Hong Kong),
LLM (University of Cambridge & Yale Law School);
Lecturer, National University of Singapore.
I. Introduction
1 The author would like to thank Professors Lee Pey Woan, Daniel Seng, Tang Han
Wu, Alvin See Wei Liang, Yip Man, Ernest Lim, Tan Zhong Xing, Tham Chee Ho, as
well as other participants of the Third Asian Private Law Workshop, for their helpful
comments. All mistakes remain the author’s.
2 See, eg, an interview with European Competition Commissioner Margrethe Vestager,
in which she said: “Because now we know that we all own our data.” Jennifer Baker,
“Vestager on the Intersection of Data and Competition” IAPP (30 October 2018)
<https://iapp.org/news/a/vestager-on-the-intersection-of-data-and-competition/>
(accessed 30 March 2020). Mark Zuckerberg also claims that individuals “own” and
have “complete control” over the information they post on Facebook. Transcript
courtesy of Bloomberg Government, “Transcript of Mark Zuckerberg’s Senate
Hearing” The Washington Post (11 April 2018).
3 See, eg, “Developments in the Law: The Law of Cyberspace” (1999) 112 Harv
L Rev 1574 at 1644–1648; Jerry Kang, “Information Privacy in Cyberspace
(cont’d on the next page)
© 2021 Contributor(s) and Singapore Academy of Law.
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174 Singapore Academy of Law Journal (2021) 33 SAcLJ
A. The dark side
7 Amitai Etzioni, “Privacy Isn’t Dead Yet” The New York Times (6 April 1999).
8 See, eg, US Department of Justice v Reporters Committee for Freedom of the Press 489
US 749 at 763 (1989).
9 Riva Richmond, “As ‘Like’ Buttons Spread, So Do Facebook’s Tentacles” BITS
(27 September 2011) <https://bits.blogs.nytimes.com/2011/09/27/as-like-buttons-
spread-so-do-facebooks-tentacles/> (accessed 10 December 2020).
10 Dave Lee, “Online Pharmacy Fined for Selling Customer Data” BBC News
(21 October 2015).
11 Kate Murphy, “Web Photos That Reveal Secrets, Like Where You Live” The New York
Times (11 August 2010).
(2) Data-related harm
12 Charles Duhigg, “How Companies Learn Your Secrets” The New York Times
(16 February 2012).
13 Michal Kosinski, David Stillwell & Thore Graepel, “Private Traits and Attributes Are
Predictable from Digital Records of Human Behavior” (2013) 110(15) Proceedings of
the National Academy of Sciences 5802.
14 Michal Kosinski, David Stillwell & Thore Graepel, “Private Traits and Attributes Are
Predictable from Digital Records of Human Behavior” (2013) 110(15) Proceedings of
the National Academy of Sciences 5802 at 5804.
15 “Privacy Backlash Over Girls Around Me Mobile App” BBC News (2 April 2012).
16 “Privacy Backlash Over Girls Around Me Mobile App” BBC News (2 April 2012).
17 Julia Angwin, Jeff Larson & Surya Mattu, “Test Prep Is More Expensive – For Asian
Students” The Atlantic (3 September 2015).
B. The bright side
11 On the other hand, personal data has been the backbone of many
technology companies. Facebook alone made a profit of US$1.6m in the
last quarter of 2015, the majority of which was derived from advertising
programmes.19 The wealth of data controlled by Facebook enables
advertisers to target specific groups of people based on their location,
demographics, interests and behaviour (eg, female lawyers aged 20 to 30,
living in San Francisco, who eat organic food and have purchased gym
memberships in the past year).20
18 See, eg, Jack M Balkin, “The Three Laws of Robotics in the Age of Big Data Lecture”
(2017) 78 Ohio State Law Journal 1217 at 1237–1238 (identifying five types of harm
caused by algorithmic decision-making).
19 Hope King, “Facebook Is Making More Money Off You Than Ever Before” CNN
Business (27 January 2016).
20 Facebook for Business, “Help Your Ads Find the People Who Will Love Your
Business” <https://www.facebook.com/business/a/online-sales/ad-targeting-
details> (accessed 5 November 2016).
21 Charles Duhigg, “How Companies Learn Your Secrets” The New York Times
(16 February 2012).
22 Amy J Schmidtz & Colin Rule, The New Handshake: Online Dispute Resolution and
the Future of Consumer Protection (American Bar Association, 2018) ch 4.
14 Our voice data, on the other hand, may be used to train digital
assistants, such as Amazon’s Alexa and Apple’s Siri,25 to recognise and
respond to our verbal requests to carry out a wide variety of tasks ranging
from checking weather to ordering products online. It may even be used
to train digital assistants to perform tasks that could previously only be
performed by humans. Many people would probably remember a pre-
recorded demo released by Google in 2018: Google’s robot assistant,
which sounded “eerily lifelike”, called real people and successfully made
appointments for a haircut and for lunch.26
over a resource, property law takes into account a wide variety of values
and interests, ranging from privacy,27 desert,28 self-development,29 to
incentivising investment in the creation of valuable resources.30 Data
protection law, on the other hand, appears to place greater emphasis on
the dark side of the personal data story. The Personal Data Protection Act
201231 (“PDPA”), the principal data protection legislation in Singapore,
applies only to “personal data”, which is defined more narrowly as
data that, either on its own or in combination with other data, can be
used to identify one or more individuals.32 In other words, the PDPA
focuses on data practices that have the potential to undermine individual
privacy. The starting point is to protect an individual’s right to control
his “personal data” (as defined) unless such right is outweighed by other
countervailing considerations, such as the interest of an organisation, as
well as the public, in collecting and using that data.33
27 Abraham Bell & Gideon Parchomovsky, “The Privacy Interest in Property” (2019)
167 U Pa L Rev 869.
28 John Locke & Peter Laslett, Locke: Two Treatises of Government (Student Edition)
(Cambridge University Press, 1988).
29 Gregory S Alexander, Property and Human Flourishing (Oxford University
Press, 2018).
30 See, eg, GS Rasmussen & Associates, Inc v Kalitta Flying Service, Inc 958 F 2d 896
(9th Cir, 1992).
31 Act 26 of 2012.
32 Personal Data Protection Act 2012 (Act 26 of 2012) s 2(1).
33 See, eg, s 3 of the Personal Data Protection Act 2012 (Act 26 of 2012). It recognises,
after all, that a balance has to be struck between an individual’s right to protect his
personal data and the interest of an organisation, as well as the public, in collecting
and using such data. The balance is mainly achieved by carving out exemptions
from the requirement to seek individual consent. For example, personal data may be
collected, used and disclosed without consent under various circumstances which
are outlined respectively in the Second, Third and Fourth Schedules to the Personal
Data Protection Act 2012.
34 Certain types of property rights may not be available in respect of some types of
property. For example, one cannot have freehold over chattels.
35 For example, easement is more limited in scope than full ownership.
recognition that private, common and public property rights can co‑exist
over the same resource.41 In this respect, he shows how these three types
of rights can co-exist in England using the example of common land: first
of all, owners of common land enjoy various private property rights, such
as the right to grant leases. The right to take produce of the common land,
which is shared among a class of registered right holders, is a common
property right. Lastly, the statutory right to access common land is
enjoyed by the public at large and therefore a public property right.
46 For a helpful discussion of the position at common law, see Lee Pey Woan, “Personal
Data As a Proprietary Resource” in AI, Data and Private Law: Translating Theory
into Practice (Gary Chan & Yip Man eds) (Hart Publishing, forthcoming).
47 [1967] 2 AC 46 at 127.
48 Your Response Ltd v Datateam Business Media Ltd [2015] QB 41 at [42]. Information
may nevertheless give rise to database rights and copyright.
49 A detailed discussion of which types of personal data are copyrightable is outside the
scope of this article since this article considers the question of whether personal data
should be protected under general property law.
50 Law Reform Committee, Singapore Academy of Law, Rethinking Database Rights
and Data Ownership in an AI World (July 2020) at para 3.22.
51 Pamela Samuelson, “Privacy As Intellectual Property” (2000) 52 Stan L Rev 1125
at 1131 (“the traditional view in American law has been that [personal data] cannot
be owned by any person”).
52 844 F Supp 2d 1040 (ND Cal, 2012).
53 In re iPhone Application Litigation 844 F Supp 2d 1040 at 1049 (ND Cal, 2012).
54 In re iPhone Application Litigation 844 F Supp 2d 1040 at 1074 (ND Cal, 2012).
55 In re iPhone Application Litigation 844 F Supp 2d 1040 at 1075 (ND Cal, 2012).
56 900 F Supp 2d 1010 (ND Cal, 2012).
data by one person does not prevent another person from possessing or
using the same data. Moreover, a piece of data can often be copied easily
and at a relatively low cost. As a result, it is often difficult for a person
to exclude others from accessing his personal data. Consider the simple
example of meeting someone for lunch. Your location data would likely
be disclosed not only to your friend but also your cellphone service
provider, Google/Apple (or any other mobile Apps with access to your
location data), and indeed every other person who happens to be at the
restaurant at the same time as you. It would not be practically possible
(or desirable) to force all of them to forget the fact that you were in the
restaurant or not to mention it without seeking your consent. The only
way to have exclusive control over one’s location data would probably be
to remain alone and shut down all access to the outside world.
62 Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently
Public Property” (1986) 53(3) U Chi L Rev 711 at 769–770.
63 Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently
Public Property” (1986) 53(3) U Chi L Rev 711 at 776–777.
64 Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently
Public Property” (1986) 53(3) U Chi L Rev 711 at 778–779.
65 Jessica Litman, “Information Privacy/Information Property” (2000) 52 Stan
L Rev 1283.
38 There are two related problems with the way personal data is
currently used. First, a data collector often has an incentive to collect
and use as much personal data as possible. As a result, an individual
whose data has been collected receives an increasing number of messages
from both advertisers and potential fraudsters. In turn, he is likely to
pay less attention to each message received, thereby reducing the return
each user can get from his data. This tendency to overuse personal data
can be explained by the tragedy of the commons phenomenon.84 An
80 [2015] QB 41.
81 Your Response Ltd v Datateam Business Media Ltd [2015] QB 41 at [12].
82 Your Response Ltd v Datateam Business Media Ltd [2015] QB 41 at [23].
83 8 NY 3d 283 at 292–293 (2007).
84 Garrett Hardin, “The Tragedy of the Commons” (1968) 162 Science 1243.
85 See paras 9–10 above.
86 See, eg, Kenneth C Laudon, “Markets and Privacy” (1996) 39(9) Communications of
the ACM 92; and Richard S Murphy, “Property Rights in Personal Information: An
Economic Defense of Privacy” (1995) 84 Geo LJ 2381.
87 Pamela Samuelson, “Privacy as Intellectual Property” (2000) 52 Stan L Rev 1125
at 1133.
rider problem;88 inventors will have greater incentives to hide the details
of their inventions from the public, thereby reducing the likelihood that
others will benefit from that knowledge.
88 See, eg, GS Rasmussen & Associates, Inc v Kalitta Flying Service, Inc 958 F 2d 896
at 903 (9th Cir, 1992).
89 Jessica L Roberts, “Progressive Genetic Ownership” (2018) 93 Notre Dame
L Rev 1105 at 1135.
90 Jessica L Roberts, “Progressive Genetic Ownership” (2018) 93 Notre Dame
L Rev 1105 at 1135.
91 Barbara J Evans, “Barbarians at the Gate: Consumer-Driven Health Data Commons
and the Transformation of Citizen Science” (2016) 42 American Journal of Law &
Medicine 651 at 658.
92 Jessica L Roberts, “Progressive Genetic Ownership” (2018) 93 Notre Dame
L Rev 1105 at 1137 (one possible explanation provided by DNA simple’s CEO is that
people “feel [like] part of the process when they get compensated”).
93 Jessica L Roberts, “Progressive Genetic Ownership” (2018) 93 Notre Dame
L Rev 1105 at 1137.
orientation (88% accuracy for males and 75% for females), Democrats
and Republicans (85% accuracy), and substance use (between 65% and
75% accuracy).108 As a result, an analysis of an individual’s personal data
can sometimes be as intrusive as (if not more intrusive than) a bodily
search. Where the relevant personal data is so closely connected with
an individual’s personhood, it arguably deserves heightened protection
under property law.
51 In the case of personal data, one may argue that if individuals had
property rights over their personal data, then a data collector and/or data
user would be required to negotiate with every individual whose data it
intends to collect or use. The costs involved in obtaining multitudinous
consents would be so high as to prevent, in at least some instances, socially
beneficial use of such data. Two types of costs are particularly relevant.
First, the costs involved in establishing the necessary infrastructure to
facilitate the exchange of personal data. For example, Kenneth Laudon
proposes that we create a “National Information Market” through which
each individual can sell his data.111 The costs of creating such a property
system will likely be significant.112 Second, the total costs involved in
getting permission from each individual to use his data may also be high.
The cost would likely be higher if some individuals intentionally hold
out, that is, refusing to give permission in the hope of receiving higher
compensation for the data in their possession.
108 Michal Kosinski, David Stillwell & Thore Graepel, “Private Traits and Attributes Are
Predictable From Digital Records of Human Behavior” (2013) 110(15) Proceedings
of the National Academy of Sciences 5802.
109 See Michael A Heller, “The Tragedy of the Anticommons: Property in the Transition
from Marx to Markets” (1998) 111 Harv L Rev 621.
110 Lee AnneFennell, “Commons, Anticommons, Semicommons” in Research Handbook
on the Economics of Property Law (Kenneth Ayotte & Henry E Smith eds) (Edward
Elgar Publishing, 2011) at p 41.
111 See Kenneth C Laudon, “Markets and Privacy” (1996) 39(9) Communications of the
ACM 92.
112 Pamela Samuelson, “Privacy As Intellectual Property” (2000) 52 Stan L Rev 1125
at 1137.
113 See, eg, Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America
(Random House, 2001).
114 See, eg, Ryan Calo, “The Boundaries of Privacy Harm” (2011) 86 Ind LJ 1131; and
Ian Ayres & Alan Schwartz, “The No-Reading Problem in Consumer Contract Law”
(2014) 66 Stan L Rev 545.
115 An estimated 3.8 billion people are active social media users: John Koetsier, “Why
2020 Is a Critical Global Tipping Point for Social Media” Forbes (18 February 2020).
116 Thanks to Prof Daniel Seng for raising the point that we might need everybody’s data
in public health emergencies. Presumably using personal data to prevent a public
health crisis would not fall within the definition of “commercialising personal data”.
120 Charles Duhigg, “How Companies Learn Your Secrets” The New York Times
(16 February 2012).
121 By contrast, the quality and value of other, more static, types of personal data, such
as one’s name and genetic data, would not deteriorate as quickly over time.
122 Srivatsa Maddodi & Krishna Prasad K, “Netflix Bigdata Analytics – The Emergence
of Data Driven Recommendation” (2019) 3(2) International Journal of Case Studies
in Business, IT, and Education 41.
123 Jennifer Valentino-DeVries, Jeremy Singer-Vine & Ashkan Soltani, “Websites
Vary Prices, Deals Based on Users’ Information” The Wall Street Journal
(24 December 2012).
124 See, eg, Trefis Team, “Google Q1 Earnings: Ad Revenues Post Growth Once Again”
Forbes (27 April 2015); and Mike Isaac, “Facebook Revenue Surges 41%, As Mobile
Advertising and Users Keep Growing” The New York Times (4 November 2015).
Google analyses user data (such as search terms and location) to serve
ads and to measure the effectiveness of its advertising.125 Facebook used
user names and pictures to endorse products to their friends (which
resulted in a class action brought against Facebook on the ground that
its “Sponsored Stories” misappropriated users’ names and likenesses).126
Even traditional businesses have not missed the opportunity to cash
in on their customer data. Banks reportedly make money out of their
customer’s shopping habits: they help retailers send targeted discounts to
certain customers and get a percentage commission each time a customer
makes a purchase.127
125 Google, “Privacy & Terms: How Google Uses Information from Sites or Apps
That Use Our Services” <https://policies.google.com/technologies/partner-
sites?hl=en‑US> (accessed 4 August 2020).
126 See, eg, Fraley v Facebook, Inc 830 F Supp 2d 785 (ND Cal, 2011).
127 Blake Ellis, “The Banks’ Billion-Dollar Idea” CNN Money (8 July 2011).
128 Jeremy Ginsberg et al, “Detecting Influenza Epidemics Using Search Engine Query
Data” (2009) 457 Nature 1012.
129 David Lazer & Ryan Kennedy, “What We Can Learn from the Epic Failure of Google
Flu Trends” Wired (1 October 2015) <https://www.wired.com/2015/10/can-learn-
epic-failure-google-flu-trends/> (accessed 20 July 2020).
130 Paige Maas et al, “Facebook Disaster Maps: Aggregate Insights for Crisis Response &
Recovery” Facebook Research (19 May 2019) <https://research.fb.com/publications/
facebook-disaster-maps-aggregate-insights-for-crisis-response-recovery/>
(accessed 20 July 2020).
135 Bruce Schneier, “Why ‘Anonymous’ Data Sometimes Isn’t” Wired (12 December
2007) <https://www.wired.com/2007/12/why-anonymous-data-sometimes-
isnt/> (accessed 21 July 2020); Ryan Singel, “Netflix Spilled Your Brokeback
Mountain Secret, Lawsuit Claims” Wired (17 December 2009) <https://www.wired.
com/2009/12/netflix-privacy-lawsuit/> (accessed 21 July 2020).
136 Paresh Dave & Munsif Vengattil, “Facebook Gave Data on User’s Friends to Certain
Companies: Documents” Reuters (5 December 2018).
137 A detailed discussion of the scope of such a common property right is outside the
scope of this article.
138 Daryl Lim, “Re-Defining the Rights and Responsibilities of Database Owners under
Competition Law” (2006) 18 SAcLJ 418 at 422–444, paras 6–7.
139 Geoffrey A Manne et al, “ICLE Comments, FTC’s Hearings on Competition and
Consumer Protection in the 21st Century” Social Science Research Network (2019)
at p 7 <https://papers.ssrn.com/abstract=3384794> (accessed 4 August 2020).
140 Geoffrey A Manne et al, “ICLE Comments, FTC’s Hearings on Competition and
Consumer Protection in the 21st Century” Social Science Research Network (2019)
at p 9 <https://papers.ssrn.com/abstract=3384794> (accessed 4 August 2020).
VI. Conclusion
141 Law Reform Committee, Singapore Academy of Law, Rethinking Database Rights
and Data Ownership in an AI World (July 2020) at paras 2.51–2.54.