"Information should be free". Should it? Is it?


Consider the following two quotes:

In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost.[1]


Bernard claims that the citizens of a democracy have a right to know. We explained that, in fact, they have a right to be ignorant. Knowledge only means complicity and guilt.[2]

They express two poles (there are more than two) of the debate over freedom of information. On the one hand, Barlow points out that information is the classical common good - it can be reproduced for free and my use of information you created does not prevent you from using it as well (unlike physical goods). On the other hand, Appleby reminds us that with knowledge comes the responsibility to act on that knowledge and not everyone can be trusted to do so properly.

The three most important reasons why information should be free are, firstly, that there are public benefits from the wide availability of information, secondly, that it is only possible for someone to make an informed choice - whether about a medical treatment or which person to vote for in an election - if they have all the relevant information available to them, and thirdly because it is inequitable to allow one person to benefit to the detriment of someone else by withholding information from them.

Against this can be placed four major arguments against freedom: firstly, that creating information can be a difficult and costly process which will not happen if there is no way to exploit the results, and that exploitation is incompatible with untrammelled distribution, secondly, that the creator of something - including information - should have a right to control it, thirdly, that some information is personal and the right to a private life means it cannot be allowed to be freely circulated, and finally that some people cannot be trusted to handle some information responsibly (consider military secrets as an obvious case) and therefore they should not be allowed to obtain it.

"free as in free speech, not as in free beer"[3],[4]

One point that needs to be got out of the way early is that "free" has two separate meanings relevant to this topic. The first is "unrestricted ... Not impeded, restrained, or restricted in actions, activity, or movement"[5]; in this sense "free information" is information that anyone can obtain without needing to show a cause or meet some arduous constraint. The second is "Given or provided without charge"[6]; here "free information" is information available without charge. The two uses are largely independent of one another: it is possible for information to be available to anybody but at a charge (though, of course, if the charge is too high then it can be viewed as an arduous constraint in itself) and, conversely, information can be provided without charge but only within some closed group (the military concept of "need to know" being an obvious example).

Where otherwise unqualified, in this essay "free" has the first meaning, not the second.

Information should be free

The first reason to make information free is the economic one: there are public benefits from the wide availability of information. More specifically, very few ideas are generated completely out of nothing. Almost always an idea, or discovery, or invention is based in large part upon existing knowledge. This is not to belittle the final inventive step, but that step would not have happened without the underlying information. This is most clear in the case of scientific discoveries: for example, to create the theory of Relativity required knowledge of Newtonian mechanics, the Michelson-Morley experiments, Maxwell's equations and their implications, the precession of Mercury's orbit, tensor calculus, and many other topics[7]. Without any one of them, the theory could not have been formulated properly, and it is only because all of this information was freely published and available to anybody who cared to study it that it could be. For a simpler example, consider that if the germ theory of disease had not been freely available to all, public health would probably still be in the state it was in the 18th century where around 90% of deaths were due to disease rather than accident or old age[8]. While not all uses of free information may be as significant as these, almost every human endeavour relies on it: history writers start with the public records that are published by the state as well as the ideas of previous historians, the lawyer needs to know what the laws and precedents are, and even the householder relies on recipes and techniques passed down from previous generations.

This principle of building upon free information is recognized even in relation to the legal mechanisms that restrict the use of "intellectual property". Thus Andrew Gowers writes:

Much of the value from the inventions and creativity protected by IP can only be realised if that knowledge is widely accessible to others. To secure an IP right, the idea must be made public, thereby adding to the common stock of knowledge available for progress.[9]

The second reason to make information free is that a person can only make an informed choice if they are, indeed, informed. If one assumes that there is an optimal choice that can be made at any decision point, then logic shows that having all the relevant information (provided, of course, that the person making the decision can assimilate that information and is not overwhelmed by it) may have no effect or may make it possible to identify a better choice than would otherwise have been made, but cannot lead to a worse choice than would have been made without it. Thus better choices will be made with free information than if it is restricted. Of course, partial information may mislead the person making the decision, but the answer to this is to ensure the information is complete and not partial, not to restrict it further. The concept of informed consent is central to parts of the legal system. For example, in medical cases a doctor is required to inform the patient of the procedure and risks before carrying it out; as Lord Woolf stated in Pearce v United Bristol Healthcare NHS Trust:[10]

if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information in needed so that the patient can determine for him or herself as to what course he or she should adopt.

though he notes that there are exceptional situations where this might not apply. The reasons for this are obvious: "patient autonomy and respect for the reality that it is the patient who must bear any consequences if a risk transforms itself into a reality"[11].

Another obvious area where informed choice is significant is that of representational democracy. The basic principle of this is that the electorate choose from a range of candidates those that they think most likely to represent their needs and desires. To do this requires not only knowledge of the candidates' positions and views on relevant matters, but also of their record in previous office - if one does not know their previous (relevant) behaviour, how can one judge if their claims will be met in the future? This suggests that, in general, as much information as possible about public affairs should be made public.

The final major reason for making information free is also an ethical one: in today's society we consider it inequitable for one person to benefit to the detriment of another by withholding information from them. The most obvious example of this is "insider trading", where various detailed codes of rules[12] have been put together with a single basic objective: nobody may profit from trading in stocks and shares based on information they possess that is not also available to the general public. While the justification for these rules is at least partially that financial markets work better when all parties are fully informed (another variant of the second major reason, discussed above, and known as the "Efficient Market Hypothesis"[13]), they also derive from a belief in "fairness", that "it was unfair to allow people to profit simply because they have privileged access to information"[14]. The concept was introduced in the USA in the Securities and Exchange Act 1934 following the Wall Street Crash of 1929, but it was only with the Cady Roberts decision of 1961 that insider trading was made generally illegal[15] and it took varying amounts of time for other countries to follow suit.

However, it is not only the financial sector that has this concept of inequity through unequal knowledge. There are many areas where a person is given a legal duty to disclose information to another, and in 2006 any attempt to gain out of a breach of this duty was made explicitly unlawful by the Fraud Act:

A person is in breach of this section if he -
 (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
 (b) intends, by failing to disclose the information -
  (i) to make a gain for himself or another, or
  (ii) to cause loss to another or to expose another to a risk of loss.[16]

Thus this ethical reason that information should be free is supported, at least in some circumstances, by criminal sanctions.

A secondary point related to this one is that free and widespread circulation of information makes it harder for one person to mislead another. In general (though with exceptions such as diplomacy and poker playing[17]) it has always been viewed as wrong to lie to another in order to profit by that lie and in many circumstances it is unequivocally illegal[18]. The easiest way, though, to prevent this wrongdoing is to ensure that as much information as possible is available to all.

Information should not be free

Against these three reasons for making information free, four major arguments can be given for restricting the flow of information. Some of these are directly in opposition to the former, but some come from a different direction entirely.

Firstly there is the economic argument that underlies all intellectual property law. The creation of information, collation of large databases, and making of a new invention or a more efficient design all involve large amounts of effort and cost (either direct or because of lost opportunities elsewhere). While there are sometimes other incentives for creating information, such as academic research, reputation, or simple enjoyment (undoubtedly a motive behind much of the material placed on the WWW)[19], most such creation is done in the expectation of being able to recoup that cost. In the absence of special situations such as sponsorship or research grants, this can only be done if the creator exploits the information in some way: for example, selling copies of the database or of the invention. If the information is freely available to others, they can sell copies at a lower price since they do not need to recoup that cost; to see this, if it is possible to sell N copies, the costs to produce a copy are C, the effort and cost of producing the information or database in the first place is X, and the required "normal" profit to make it worth entering the market (rather than just putting the money in the bank) is P, then:

- the creator must sell at a price  ≥ [(X + P) ÷ N] + C
- anyone else must sell at a price  ≥ [P ÷ N] + C

with the difference between these minimum prices being X ÷ N[20].

Therefore we see that, in order for information to be created, it is necessary for there to be a way to prevent others from making use of it - in other words, information must not be free in order that more information is created. This leads us to the whole panoply of intellectual property laws, based around the concept that the creator of new information has a time-limited right to control its distribution. Of course the situation is not as simple as this and there are several different but related rights. Firstly, there is copyright, which gives the author or creator of a literary, artistic, or similar work the right to decide who can publish or create copies of it or of substantive parts[21]; in general copyright lasts for the lifetime of the author plus another 70 years. The right does not extend to the underlying information or idea, only the way in which it is expressed, though this does not mean that anything other than a direct copy is permitted - for example, the case of Baigent & Leigh v Random House[22] concerned the copying of the "central theme" of a book rather than any explicit text, and it was noted in that case that the line between "idea" and "expression" is hard to identify:

No clear principle is or could be laid down in the cases in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.[23]

Next there are rights such as the sui generis database right introduced by the Database Directive[24]. This lasts for 15 years and forbids the extraction or re-utilization of significant parts of a database. In essence it aims to protect "the financial and professional investment made in obtaining and collection the contents"[25] of the database, though an ECJ decision[26] limited that protection to the effort involved in collecting or verifying existing material, not any effort involved in creating the contents in the first place (assuming the contents are not eligible for copyright protection). This right derives in part from the "sweat of the brow" doctrine developed over many years by common law courts, at least as far back as Kelly v Morris[27] where the court held that:

generally, he is not entitled to take one word of the information previously published without independently working out the matter for himself, so as to arrive at the same result from the same common sources of information, and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained.[28]

Again the theme is to allow the creator to recoup the costs of creation.

Then there is a gaggle of design rights from various origins which protect the effort involved in producing an attractive feature of some industrial design, such as the shape of a car or a coffee jar[29]. The information required to reproduce the feature is, in principle, visible to anybody who examines it and is therefore freely available. Nevertheless, design rights forbid the copying (and in some cases, the independent re-creation) of the design in order to allow the original designer the opportunity to recoup the additional costs of an attractive or easier-to-use design as opposed to a basic one.

Finally, the trade-off in question is most clearly expressed in the form of patents. A patent gives the inventor of a useful invention a monopoly over its use, usually for 20 years, in exchange for complete disclosure of the invention. Even someone re-inventing the idea completely independently infringes this right. But note the requirement for complete disclosure: the purpose of the right is to ensure that in due course the information enters the common weal and can be freely utilized thereafter in order to improve general knowledge:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;[30]

The second major argument against the freedom of information is an ethical one, sometimes known as the "Labour-Desert Theory", that a person has a right to the fruits of their labour. This was first expressed by Locke:

Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.[31]

and today is seen equally as a justification for intellectual property rights[32]. In civil law countries it is known as the "droit d'auteur", the right of the author: the author's "moral right" to decide the fate of his work overrides any other policy, and even after it has been published he can object:

to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation[33]

Under these theories, forcing information to be made freely available would be a breach of the basic human rights of the creators, in just the same way as confiscating their clothes or their car would be.

The third, and perhaps strongest, argument against the freedom of information is the issue of personal privacy. A lot of information is about individual people, ranging from their date of birth through their personal friendships and relationships, health matters, events in their life which they would rather had not happened, and many other matters which can be consolidated into the term "private life". This information might not be particularly secret or even novel, but that does not mean it deserves to be broadcast to the world. We are all aware of this concept in the physical world:

It is not a secret that when naked, I look very similar to three billion other beings on this planet - and so do you, reader. Nevertheless, upon taking a shower, I close the door of the bathroom.[34]

The same applies, or should apply, to personal information. Over a quarter of a million people were born on the same day as me, but that doesn't mean that I should need to tell everyone my date of birth. Furthermore, modern information processing means that individual scraps of data can easily be assembled into a whole that might be harmful to me even if I am not causing any harm myself. For example, my sexual preferences should be irrelevant to my employer, but - people being imperfect - they could prejudice her against me when it comes to deciding who among near-equals should be promoted. A list of people I call, or who call me, late at night could be used to make deductions about my relationships and, therefore, harm me. The only way to prevent this harm is to hold the information private in the first place.

This principle is recognized in several places in law. Firstly it is a basic human right:

Everyone has the right to respect for his private and family life, his home and his correspondence.[35]

Over the last few years the English courts have developed a breach of privacy tort to defend this right[36] and accepted that much information about a person is private, even including activities in public[37] or photographs of events that have been published elsewhere[38]. Secondly, when it comes to computerized records, comprehensive protection is provided by the Data Protection Act 1998 which, among other things, forbids disclosure of personal data[39] without a specific justification[40]. The Durant judgement has whittled this down slightly to include only information which is "biographical in a significant sense" but, nevertheless, it is still based on the concept of "information that affects his privacy" [41]. Finally, various specific pieces of legislation recognize the need for privacy: for example, census information may not be disclosed[42] until its release under the "100-year rule"[43].

The final major argument against freedom of information relates to the issue of trust. There is information which can be used to do harm and, therefore, should be withheld from those who would or could use it to that end. The most obvious example of this is secrets relating to national security. It has been accepted since time immemorial that, no matter how strong your armies, there are things that you should not let potential enemies discover, whether weak points in the defences or secret passages that can be used both to resupply cities under siege and to break into them. In the modern world this develops both into a culture of military security but also a more general policy of keeping everything secret "just in case". Thus for many years civil servants would not publish even simple and harmless information - a map of the UK showing the location of each telephone dialling code was classified as an Official Secret by the GPO[44]. The same policy is followed by businesses - the names of customers and how much they buy is often treated as a secret in case it helps a commercial rival. Of course, very often this policy is justified. For example, a business developing new markets will put significant research into locating new customers and classifying them according to their potential, and they do not want to give rivals help by allowing them to re-use this research.

There are also other situations where the general public is not trusted with information. For example, the IWF supplies ISPs daily with a list of web pages that contain images of child sexual abuse[45]; these images are illegal to possess[46] and the technical processes involved in viewing them on a computer also constitute other offences[47]. Therefore anybody other than a responsible person at an ISP or similar appears to have no legitimate reason to even know which web pages are involved and - since at least some people are likely to use the list in order to deliberately obtain these images - it is best that the list be kept secret[48]. In other words, it is in the public interest for this information not to be free.

Balancing the issues

These seven reasons show us that the true issue is one of balance. While there are economic benefits from the wide availability of information, there need to be incentives to create that information. The balance between these two is struck through intellectual property rights that grant those incentives. Furthermore, those rights are restricted both in time and by excluding certain uses from them that increase the public benefit without significantly affecting the incentives to produce material: for example, material may be copied for research or private study or (with acknowledgement) for reporting current events[49]. Similarly, informing the electorate about matters and ensuring those in a position of power cannot misuse it has to be balanced with both the protection of legitimate state secrets and the privacy of both politicians and others mentioned in public documents.

There is also the secondary point of information overload: if there is too much information available, it is hard or even impossible to determine whether one has all the information relevant to a matter. We are all familiar with the scenario where a simple query entered into Google returns half a million responses. While sometimes it is possible to narrow the query down enough until the right answer is found, and search engines employ sophisticated algorithms to bring the most relevant sources to the top of the results, all too often the feeling remains that the needle sought is hidden in the haystack of available information. It can be impossible or impractical to assimilate all the data provided to determine the relevant and true. In the meantime, although an informed choice is better than an uninformed one, it is possible to make a wrong choice because one item of information overwhelms others, and it may be better to withhold that item rather than give it[50]. But, in taking this approach, care must be taken not to fall into the vice of paternalism: deciding that information should be held "for their own good" or "because they won't understand" rather than because there is a clear benefit in doing so. It is also important not to assume that any problem with freedom of information is an argument for secrecy. Again, the two must be balanced.

Is information in fact free?

Having discussed the arguments for and against the question of whether information should be free, I turn to the question of whether in fact it is, in particular looking at the areas of Freedom of Information and of Privacy & common law. Here we see how these issues are treated and balanced in the real world.

Freedom of Information

The idea of a Freedom of Information Act first entered mainstream UK politics last decade, appearing as a Labour manifesto commitment for the 1997 election. The legislation was passed in 2000 but brought into force at the beginning of 2005. Devolution meant that it took a separate legislative form in Scotland[51], but the differences are small enough that they can be ignored in this context.

The purpose of the Act is clearly expressed in section 1(1):

Any person making a request for information to a public authority is entitled -

 (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

 (b) if that is the case, to have that information communicated to him.

While there are over two dozen classes of exception[52] the principle is clear: information held by the state - in the widest sense of the term - is intended to be freely available to anybody who wants it. Refusals to publish information must be justified; under s.50 the applicant is entitled (after exhausting any internal complaints procedure) to appeal the decision to the Information Commissioner, who will judge whether the claimed exemption should have been applied or not. The Commissioner will normally apply a presumption of disclosure; for example, decisions typically look only at the claimed exemptions and do not look for others that might be applicable[53]. Furthermore, under s.19 public bodies have a duty to proactively publish material, not just react to specific requests, and under s.16 they have a general duty to assist applicants - for example, a body would be expected to make a partial release of information where only some of it is exempt, or to correct an obvious error, rather than requiring a second application to be made.

The list of exemptions represents a balancing between the benefits of the public to have this information available to them and the various reasons and rights that restrict publication. Two of the four arguments against freedom of information can be found among them: under s.40(2) personal data of a third party need not be disclosed as part of a response to a request - a clear case where the right to privacy outweighs the principle of freedom - while ss.23-29 exempt material whose disclosure would prejudice national security or related matters such as the economic interests of the UK, giving a clear example of a situation where allowing information to be free would be harmful. On the other hand, the Act does not explicitly recognize either the economic or "droit d'auteur" reasons for withholding information, and a disclosure under the Act would, presumably, be exempt from action for breach of copyright. However, s.43(2) does exempt any disclosure that would prejudice anybody's commercial interests, which means that trade secrets and unfinished material that has a future value can be exempted.

Some of the exemptions are "absolute" - that is, they can be applied simply on the facts - but most of them require the public authority in question to carry out a balancing test of the kind discussed above, the exemption only applies if:

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information[54]

For example, in the Derry City Council case[55] the council was operating an airport and was asked for details of a contract between it and Ryanair. The council needed to balance the public interest in knowing how the council was spending its money with its own commercial interests - for example, publishing the financial details of the contract might put it in a weaker position when negotiating with other airlines. In particular, would those details add enough to the public debate to outweigh the potential harm?[56]

In summary, the Freedom of Information Act makes a large amount of public information free, but only where doing so causes no harm or where the benefits outweigh any harms.

Personal privacy

The area of personal privacy is one, as argued above, where there are very strong reasons for information not to be free. In essence, privacy is the right to control when and how information about oneself is published.

This right is recognized in UK law in the Data Protection Act 1998. This lays down eight "Data Protection Principles" to control the processing of all personal data on computers (plus some manual filing systems). These need not be repeated here, but they all relate to ensuring that such processing is "fair"; many of them require the subject of the data to be aware of the processing or be able to reasonably predict it. Thus, for example, if the person supplying the data is misled as to the purposes for which it is supplied, this is unlikely to be seen as fair[57].

The Act creates three basic rights for data subjects (the person who the personal data is about). The first is a right of disclosure: to receive a copy of the data and some supplementary material relating to it[58]. This is another example of informed choice through information freedom: by forcing the information about data processing to be published (albeit only to the data subject), the subject is better able to decide whether the processing is fair and, if not, what action to take. The second is a right to prevent processing likely to cause substantial and unwarranted damage or distress[59]. Since "processing" includes disclosure to a third party, this is a basic tool giving an individual control over her personal privacy. Finally, the third is a right to have inaccurate personal data corrected or deleted[60]. This right does not directly protect privacy, but as well as protecting the data subject from the harms done by inaccurate data, it also - by reducing the spread of fallacious information - it helps to maintain the benefits of free information.

In practice the effects of the Act have been rather muted. The existence of the Act and publicity from the Information Commissioner's Office has greatly improved public awareness of data protection issues. On the other hand, the ICO's lack of resources and the sheer amount of data that is processed every day means that enforcement of the Act has very probably been patchy at best. Furthermore, a number of recent high-profile data losses by public authorities[61] show that the existence of data protection legislation is not enough to ensure that data is actually protected. It is unlikely that we will ever know just how much harm, if any, was done by these disclosures and even more unlikely that anyone will be compensated for them.


"Information wants to be free" is one of the battle cries of the 21st century. The creation and expansion of the Internet means that there is a vast amount of information available to everyone with computer access. Attempts to remove or block access to information often cause it to be broadcast or replicated far wider[62].

But this does not mean information should be free, nor that it is. There are many good reasons for much information to be made freely available. There are also good reasons for some information to remain restricted (though enforcing one viewpoint over another is not one of them). In practice, legislation has been used to force public authorities to make information free, and to prevent anyone from gratuitously publishing personal information about others.

At the end of the day, the question of freedom of information is a balance of complex and conflicting interests and rights.


[1] A Declaration of the Independence of Cyberspace, J.Barlow, available at http://homes.eff.org/~barlow/Declaration-Final.html

[2] Sir Humphrey Appleby KCB MVO MA, quoted in Yes, Minister by J.Lynn and A.Jay, pub. BBC books 1989. ISBN 0563206659.

[3] The Free Software Definition, issued by the FSF and available at http://www.gnu.org/philosophy/free-sw.html

[4] But see the Free Beer Foundation at http://www.freebeer.org for a novel treatment of this dichotomy.

[5] Oxford English Dictionary, definition II.5.a.

[6] Oxford English Dictionary, definition IV.24.a. The adjective also has 61 other meanings listed.

[7] This footnote is too small to explain all these concepts and how they relate to the theory of Relativity; for the purposes of this essay it is merely necessary to note how many there are.

[8] See for example the figures in Gentleman's Magazine, taken from London Bills of Mortality and reproduced at http://www.thornber.net/medicine/html/mortality2.html

[9] Gowers Review of Intellectual Property, pub. HMSO 2006, ISBN 978011840839, at para 1.6.

[10] [1999] ECC 167 at para 21. "in needed" in the third line probably should be "is needed".

[11] Birch v University College London Hospital, [2008] EWHC 2237 (QB), at para 72.

[12] The specific UK rules are found in the Financial Services Authority Disclosure Rules and Transparency Rules, available at http://fsahandbook.info/FSA/html/handbook/DTR. In turn they derive from Directive 2003/6/EC on insider dealing and market manipulation (OJ L 96, 12.4.2003, p.16-25) and the implementing Commission Directive 2003/124/EC (OJ L 339, 24.12.2003, p.70-72).

[13] Efficient Capital Markets: A Review of Theory and Empirical Work, E.Fama, J. Finance 25 (1970) 383-417.

[14] A Financial History of Modern U.S. Corporate Scandals, J.Markham, pub. M.E. Sharpe, 2006, ISBN 0765615835, at page 379.

[15] Ibid, page 378.

[16] Fraud Act 2006 s.3. Under s.1 this is made a criminal offence; "gain" and "loss" are defined further in s.5.

[17] Games Theory shows that a poker player who never bluffs can always be defeated and, thus, bluffing is an essential part of the game. See Theory of Games and Economic Behavior, O.Morgenstern & J.Von Neumann, pub. Princeton University Press 1944, ISBN 9780691130613 (60th anniversary edition).

[18] Fraud Act 2006 s.2 defining "fraud by false representation".

[19] Philosopher's Stone, C.Anvil (Analog, January 1963) suggests that the peerage system could be revamped to provide an incentive for successful inventions.

[20] This assumes that each party can sell the same number of copies irrespective of the price. In reality, a lower price is likely to mean greater sales and thus more overall profit for sellers other than the creator - the full analysis to determine the optimal strategy for each person is beyond the scope of this essay.

[21] Copyright, Designs and Patents Act 1988, part 1, and in particular s.16.

[22] [2006] EWHC 719 (Ch)

[23] Ibid, at para 5.

[24] Directive 96/9/EC on the legal protection of databases, chapter III. Official Journal L77, 27/03/1996 p.20-28.

[25] Ibid, preamble (39).

[26] British Horseracing Board Ltd and Others v William Hill Organization Ltd (Case C-203/02) (reported at [2005] RPC 13), judgement paras 54-56.

[27] (1865-66) L.R. 1 Eq. 697.

[28] Ibid at 702.

[29] See Gowers, op.cit. (footnote 9), at para 1.1.

[30] US Constitution, article 1, section 8. Emphasis added.

[31] The Second Treatise of Civil Government, J.Locke, pub. 1690, at chapter 5, section 29.

[32] See, for example, Rethinking Lockean Copyright and Fair Use, S.Horowitz, [2005] Deakin Law Rev. 10.

[33] Berne Convention for the Protection of Literary and Artistic Works, article 6bis(1).

[34] Telling Privacy from Not Privacy, O.Cleynen, personal blog, available at http://www.ariadacapo.net/blog/telling-privacy-from-not-privacy/

[35] European Convention of Human Rights, Article 8.1.

[36] For a useful summary of this development, see The development of the action for breach of confidence in a post-HRA era, T.Aplin, 2007 Intellectual Property Quarterly 19.

[37] E.g. see Peck v UK (2003) 36 E.H.R.R. 41.

[38] E.g. see Creation Records Ltd v News Group Newspapers [1997] EMLR 444, or Douglas v Hello! (No.3) [2006] QB 125.

[39] Defined by the Data Protection Act 1998 s.1(1) as "data which relate to a living individual who can be identified" from that data with or without other information.

[40] See the Data Protection Act 1998, s.27(4), for a list of the "non-disclosure" provisions of the Act.

[41] Michael John Durant v Financial Services Authority [2003] EWCA Civ 1746, at para 28.

[42] Census Act 1920 s.8 as modified by the Census (Confidentiality) Act 1991, s.1.

[43] This rule currently has no statutory basis; it is discussed, and overruled, in the FOIA Decision Notice available at http://www.ico.gov.uk/upload/documents/decisionnotices/2006/101391_dn_rt_changes.pdf

[44] Brian Hamilton Kelly (deceased), Usenet message-ID <1014103717snz@dsl.co.uk>.

[45] See http://www.iwf.org.uk/public/page.148.htm

[46] Criminal Justice Act 1988 s.160(1).

[47] R v Jayson [2002] EWCA Crim 683.

[48] This ignores the separate issue of how the public can be sure the list contains nothing other than such pages.

[49] Copyright, Designs and Patents Act 1988, s.29 and 30.

[50] See for example Pearce v United Bristol Healthcare NHS Trust, [1999] ECC 167, at paras 23-25

[51] Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002.

[52] Freedom of Information Act 2000 ss.7,12,14, and 21-44.

[53] See for example Decision 021/2005 of the Scottish Information Commissioner, paras 41-51, particularly 48.

[54] Freedom of Information Act 2000 s.2(2)(b).

[55] Derry City Council v Information Commissioner, Information Tribunal appeal number EA/2006/0014.

[56] It was eventually held that the public interest outweighed the commercial risk to the council.

[57] Data Protection Act 1998 schedule 1 part II para 1(1).

[58] Data Protection Act 1998 s.7.

[59] Data Protection Act 1998 s.10.

[60] Data Protection Act 1998 s.14.

[61] See http://news.bbc.co.uk/1/hi/uk/7449927.stm

[62] Sometimes known as the "Streisand Effect", see e.g. http://www.lfpress.ca/cgi-bin/publish.cgi?p=111404

Online sources

All online sources were successfully accessed on some date between 1st and 4th January 2009.

Table of cases

Baigent & Leigh v Random House, [2006] EWHC 719 (Ch).

Birch v University College London Hospital, [2008] EWHC 2237 (QB).

British Horseracing Board Ltd and Others v William Hill Organization Ltd (Case C-203/02) (reported at [2005] RPC 13).

Creation Records Ltd v News Group Newspapers [1997] EMLR 444.

Derry City Council v Information Commissioner, Information Tribunal appeal number EA/2006/0014.

Douglas v Hello! (No.3) [2006] QB 125.

Kelly v Morris, (1865-66) L.R. 1 Eq. 697.

Michael Collie and the Common Services Agency for the Scottish Health Service, Decision 021/2005 of the Scottish Information Commissioner.

Michael John Durant v Financial Services Authority [2003] EWCA Civ 1746.

National Archives, Information Commissioner Decision Notice of 11th December 2006.

Pearce v United Bristol Healthcare NHS Trust, [1999] ECC 167.

Peck v UK (2003) 36 E.H.R.R. 41.

R v Jayson [2002] EWCA Crim 683.

Further reading

L.Edwards, Taking the "Personal" Out of Personal Data: Durant v FSA and its Impact on the Legal Regulation of CCTV, (2004) 1:2 SCRIPT-ed 341.

A.Gowers, Gowers Review of Intellectual Property, pub. HMSO 2006, ISBN 978011840839.

G.Greco & L.Floridi, The Tragedy of the Digital Commons (2004) 6 Ethics Info Tech 73-81.

S.Horowitz, Rethinking Lockean Copyright and Fair Use, [2005] Deakin Law Rev. 10.

H.McQueen, C.Waelde, & G.Laurie, Contemporary Intellectual Property, pub. 2007 OUP, ISBN 9780199263394, particularly chapter 2.

C.Prins, When personal data, behavior and virtual identities become a commodity: Would a property rights approach matter?, (2006) 3:4 SCRIPTed 270.

D.Solove, 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy, San Diego Law Review, Vol. 44, 2007; GWU Law School Public Law Research Paper No. 289.

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