A transparent approach to privacy policies

Transparent definition

Richard Beaumont’s article “Transparency Should Be the New Privacy” echoes a point I’ve also been making recently: data protection or privacy is mostly about transparency and trust. Sure, compliance is essential but from a data subject or consumer’s perspective, how transparent you are about how your process the data subject’s personal information and whether your activities engender trust are arguably as important. Achieving that requires a varied approach to data protection and one of the key elements is the document you publish about this, namely the privacy policy (also known as a “data protection policy”, “privacy statement” and other titles).

As Beaumont points out:

The website privacy policy is the basis on which organisations can claim they have received consent from customers/visitors to collect whatever data they want and do what they like with it. In a data-driven world, they are important documents. Expensive lawyers are often paid large sums of money to write them in the full knowledge that they will rarely be read. Of necessity, it is written in legalese that most people won’t fully understand, and it is long because it has to cover all eventualities.

Of course, hardly anybody reads them. In the vast majority of cases, it would be a colossal waste of time.

I don’t agree with an approach that obscures privacy policy wording by using legalese and complex language but privacy policies are typically not read and understood before data subjects share their personal information. On the other hand, Beaumont makes a number of good points about the purpose of most privacy policies:

However, the problem is not really with the privacy policy itself as a document; it is the fact that it has been mis-sold to us. We are led to believe its purpose is to inform. We are told this because consent relies on us being informed about what we are consenting to. It is the basis of almost all privacy law throughout the world.

However, if that were true, it wouldn’t be buried in a link at the bottom of the page and written in dense text that is often also in a smaller font than the rest of the site. Website designers and copywriters know how to inform people online. The privacy policy is the document on any website least likely to inform the visitor in any meaningful way.

The reality is that the privacy policy is designed to protect the owners in the case of a dispute—which is what most legal documents are designed to do. There is nothing wrong with this—these documents are necessary in certain circumstances. It’s just that they don’t fulfil the more common need for accessible information about privacy practices at the company.

He goes on to propose a “transparency policy” as an alternative to a conventional privacy policy. I don’t think we need a new term for the document except where using a new name shifts our perception of the document’s role. I’ve been reading a lot more about more visual legal documents and I like Beaumont’s suggested approach, at least in part:

The transparency statement will be short, clear and simple to understand. It might borrow from the “layered” privacy policy model and would almost certainly involve a strong visual element. It will be easily accessible and you will be encouraged to look at it, especially on a first visit. It will be the basis on which the website will set your expectations for how you and your data will be treated.

His model involves a transparency statement operating alongside a privacy policy which would give the transparency statement important “legal weight”. I don’t think this is necessary, though. I prefer some lawyers’ approach of publishing a “privacy statement” rather than a privacy policy. Although privacy policies are frequently framed as documents you, as a data subject, agree to, they can function just as well as statements of what personal information is being collected; how it is being processed and under what circumstances that personal information may be disclosed and to whom.

When I prepare privacy policies, I usually pair them with a website’s terms and conditions which invoke the privacy policy as an explanation of what personal information is processed and how. The terms and conditions then reference the privacy policy and provide the “legal weight” Beaumont refers to. In that model, a privacy policy could be reframed as a streamlined privacy statement along similar lines to Beaumont’s suggested transparency statement and lawyers. Inferring agreement with a privacy statement becomes largely unnecessary and it would only really be important to establish that data subjects agreed to the terms and conditions themselves which, in turn, would point to the privacy statement for information about personal information processing.

A streamlined privacy statement would also be better suited to more visual representations of its contents which makes them far more intelligible and, by extension, a company’s data processing activities more transparent. With more transparency comes more accountability and trust. In addition –

Because the transparency statement is also more likely to be read, commented on and engaged with, it will likely improve over time, and accepted standards might emerge. This would potentially create a virtuous circle that further improves clarity for consumers.

Emerging standards have further benefits which I find really exciting. The bottom line, though, is Beaumont’s conclusion:

Transparency statements could be the vehicle to enable the majority of people to make better-informed choices than they currently do and use a truly market-driven approach to online privacy practice.