Law and Information

As promised, here’s another translation/summary of Jean Nicolas Druey’s work on the “information overload” (published as: “Daten-Schmutz” – Rechtliche Ansatzpunkte zum Problem der �ber-Information, in: Festschrift zum 65. Geburtstag von Mario M. Pedrazzini. – Bern, 1990. pp. 379-396.)

Druey introduces the article on pp. 379-380 with some general thoughts about the emergence of the information society and the increasing awareness of information as a building block of our society, our lives, etc. He argues that the “information age” must also have an impact on the legal system, not only because we face the emergence of new problems, but — more fundamentally — because law is itself information. However, Druey claims that legal scholars haven’t thoroughly reflected the legal ramifications of the information phenomenon. One exception, according to Druey, is data protection law (in German: Datenschutz. Please note that the title of the article: “Daten-Schmutz,” plays with words. In German, “Daten-Schmutz” sounds almost like “Datenschutz,” but it means something entirely different: Schmutz is smut, i.e. data-smut.)

On p. 380, Druey outlines the fundamental legal problems related to information. He starts with the notion that law is aimed at conciliating opposing interests. Traditionally, opposing interests in information were related to situations where one party was eager to get information about something, but the other party had an interest to keep this information (knowledge) confidential — or at least not to communicate it. The focus of attention in the past, according to Druey, was thus on confidentiality, secrets, and the like. In more recent times, however, the emphasis has shifted: The emergence of the information society is accompanied by the creation of a great number of “information rights”, i.e. rights to get information from other individuals, but also from governments (UG: one might think about the freedom of information act).

Less much attention, however, has been paid to the fact that the structure of interests might be reversed: Consider a person who has information and wants to be heard. Is there a right to be heard? On the other side of the same coin: A person who is *not* informed might have an interest that the information channel remains closed, i.e. that he does not have to receive information.

Thus, the basic conflicts in information law might be mapped as follows (matrix), p. 381:

I. Interested Party

a) Informed Party | b) Non-informed Party
|
c) in information = access rights | = Right to information (disclosure rules)
|
II. Interest —————————————————————————————–
|
d) in non-
information = Confidentiality laws | = Protection against info.
|

This graph suggests an ambiguous nature of information. We are used to think about information as a positive value, and, in fact, the traditional conflicts — i.e. confidentiality and right to information — are based on this assumption. But the viewpoint that someone might have an interest in being protected against information makes it clear that information might also have a negative value. Druey acknowledges that this notion of “negative value of information” is counterintuitive and against our common sense understanding. He argues that the positive notion of information we generally apply describes an ideal world, because we generally neglect that information must be processed at some costs. Druey argues that this ideal situation is not an accurate description of reality, since information needs always to be processed and because information might even be counterproductive due to the possibility that a given receiver draws wrong conclusions based on it (p. 381).

On p. 382, Druey turns to the problem of information overflow. The situation of opposing information interest under this scenario is obviously connected to the forth quadrant ( “protection against information”) of the above matrix. On p. 382/83, Druey outlines a “Postulate of Information Ecology”. He starts with a brief description of the problem of information overload from a rather subjective perspective and some narratives. Then, he turns to the question how the problem of information overload can be addressed. On p. 382, he distinguishes between three approaches: First, the receiver has to learn to live with information overload, has to improve her information selection and processing capabilities, competences, etc. Second, it is crucial that intermediaries (media, but also teachers, consultants, etc.) step in and pre-select, pre-process, translate, customize, … information. However, in many situations the only solution might be to reduce the activity level of the sender (source). The third aspect is the one Druey will be focusing on for the remaining part of the article.

Druey argues that the necessity to develop strategies against information overload that apply to the sender/source derives from the distinct nature of information if compared to goods. If too much goods are distributed, the resulting problem is one of “wasting resources” and “waste disposal”. Information, in contrast, that is redundant limits the attentiveness of the receiver at the costs of information that has probably a higher relevance. This goes back to the characteristic of information that its relevance can only be assessed once it has been consumed. Druey concludes (p. 383): The greater the information supply, the greater the risk to choose irrelevant information and ignore the relevant. In sum, Druey argues that too much information is not only a waste of resources, but does harm, and that the selection cannot be delegated to a market, but creates a responsibility of the sender. (Later, he gets back to the notion that market cannot solve the selection problem.) Druey acknowledges that the idea of a sender responsibility with regard to “too much information” has not been an issue in law. However, he argues that there are at least some examples or precursors where law aims to limit the dissemination of information to serve different (!) interests than the classic secrecy/confidentiality interests. The first example (p. 384-87) concerns the therapeutic privilege, i.e. a situation, “in which the physician may be excused from disclosing information to a patient when there is sufficient evidence that the patient is not psychiatrically or emotionally stable to handle the information, that the disclosure of information itself would pose serious and immediate harm to the patient, such as inducing some physiologic response such as a heart attack or prompting suicidal behavior.” (Source: http://sprojects.mmi.mcgill.ca/ethics/definitions.htm.) Druey takes from this example that duties to inform are not always qualified to bridge lack of trust. Rather, these duties — and the exercise of them — are themselves part of the trust relation.

Second, Druey looks at information bans in antitrust law (pp. 387-390). Here, it might be enough to say that Druey uses a U.S. antitrust case to develop the argument: United States v. Container Corp. of America, 393 US 333 (1969). In essence, Druey argues that markets need information. Thus, market transparency is a prerequisite for the competitive markets and their regulatory effects. However, there are circumstances in which competition is inhibited where information is disclosed, because market participants are adjusting to the behavior of others that has become public. Here, Druey uses Container Corp. to make the point. Druey argues that the ambiguous nature of information (“it is good, but not always”) makes it difficult to make choices, because the question whether information is good or bad heavily depends on factors such as the structure of the market (Druey refers to Justice Douglas’ opinion in Container Corp.). The problem that too much information may create the problem of hugely coordinated behavior is also evident in cases where reactions to rather limited stock exchange crashes lead to fatal chain-reactions and global crisis. As a consequence, Druey suggests that information limitations and delays in information processes might be instruments to stabilize order.

Third, Druey explores consumer protection laws which often stipulate disclosure rules (pp. 390-392). Druey argues that the enormous amount of information available to consumers might result in an overload with the unintended consequence that consumers turn back to “simple” messages, e.g. presented in TV spots, etc. However, he thinks that intermediaries might help, e.g. organizations testing products and publishing rankings of certain categories of products, etc. In any event, Druey argues (p. 392) that it does not solve all the problems just to put intermediaries in place. Rather, the selection problem is simply delegated from the receiver to the intermediary. Thus, the receiver loses autonomy. Moreover, if the decision about information shifts at a large scale from individuals to intermediaries — often market players –, it might affect the market itself.

Fourth (pp. 392-395), Druey looks at limitations of information in the interest of culture and education. In this section, he argues that the concept “free flow of information” as a policy principle does not work, because the capacities to absorb and process information are limited, and because the selection of the best information cannot simply be delegated to the market mechanism. Thus, it is not appropriate to implement “free flow of information” as a policy principle and to let the individual alone with the overwhelming amount of information. Rather, the state has some responsibility to put mechanisms in place to address the problem of over-information of its citizens. Druey makes clear that these arguments are not advocating censorship or the like. He simply argues that the principle “let information flow” is not the solution to a complex problem. One of the most important sentences, in my opinion, is written on p. 394. Druey concludes: “It is one of the tasks of the law to design a system of intermediaries, which guarantees a *relative* maximum of freedom to send, but also receive information.”

In his conclusion (p. 395/6), Druey argues that it is crucial to understand – also from a legal perspective – that we must care about an optimum, not a maximum level of information. Moreover, he summarizes the problem of information overflow as follows: The problem, generally speaking, goes back to the phenomenon that a given receiver over-estimates the importance of a single piece in relation to another piece of information. This phenomenon results from the fact that the receiver is swamped with the selection of information. As a consequence, certain limitations of information flows by law are not against freedom of information/free speech (to be understood as the supply of information to satisfy the information needs of individuals as-best-as-possible). Rather, such limitations might even be required to achieve this freedom (p. 396). Finally, Druey emphasizes that — in the best case — we’re in the process of identifying the problem of information overload, but that we are far away from having any adequate solutions to it. Certainly, however, we reach the limits of what law can and shall do.