Regulate data to avoid losing public trust, says Peter Harris

By David Donaldson

September 11, 2018

Data is emerging as the major driver of innovation in countries like Australia and it’s important governments begin to regulate it to avoid loss of public trust, says the outgoing chair of the Productivity Commission.

“We’ve got to view data in the future as being this diamond, this fantastic asset, because increasingly we can see it’s the biggest driver of innovation, particularly in the services sector — and in manufacturing, but particularly the services sector — in the world,” Peter Harris tells Caron Beaton-Wells, professor of competition law at Melbourne University, on the latest episode of her podcast, Competition lore.

Implementation of the consumer data right promoted by the Productivity Commission — giving customers greater control over the data created about them — could lead to increased competition and better value for the public.

For example, you could ask your energy company to hand over your smart meter data — attached to an identifying number but not your name — to another energy company to see if they are willing to offer a better price on your electricity.

“Currently under our privacy arrangements, you’re able to see the data that’s held on you, you’re able to correct it if it’s wrong, but you’re not able to use it for another subsequent purpose. For example, this one we’re emphasising, which is the ability to order your collector to send a copy of your data to another party in order that you might receive a more competitive offer,” he explains.

This is a rather different approach to the right to be forgotten, advocated by many, where a company must delete your data once you move providers. Removing the data would destroy opportunities to improve competition, Harris thinks.

But while he is a big advocate of allowing the private sector space to grow, Harris worries that unregulated expansion of data services could lead to scandals, fomenting calls for heavier restrictions and a loss of public value.

“Particularly for where we can see business-to-consumer kind of behaviour, data is going to be the foundation of better product offerings in the future,” he says.

“It’s going to be very significant, and yet if we wait too long to put some form of regulated direction in it, it will be driven solely by private interests.

“That’s not to say that will be terrible in all circumstances, but it does set up this possibility of consumers feeling exploited and starting to, as it were, work against the interests of data collection.”

Unusually quick take-up

Harris says the positive reaction to the PC’s Data availability and use report — the agency’s most viewed report online — has been the highlight of his time in the job.

And it’s not just publicly popular — the government is already acting on it, with the consumer data right being rolled out in the banking sector first, with telecoms and energy next.

“It’s relatively rare for Productivity Commission reports to be implemented with alacrity,” he argues.

“This one has had a very, very speedy take-up by the federal government.

“… Also the fact that the government has not cherrypicked this and said let’s just apply this to one sector and see how we go — the government has actually decided to go with a comprehensive right and it’s triggering as we need it in particular areas.”

Harris also said the foundation of any policymaking is to first identify the public interest — though he acknowledged the difficulty for public servants of working out what “the public interest” actually is.

“Because the public interest is such an ill-defined concept, so hard to work out, there are no good rules.

“Most academics who write on the subject write things that are not at all relevant to people sitting at a desk trying to identify — based on what the government of the day says it wants to do — what is the public interest.”

Peter Harris: Data and Australia’s new consumer right

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