Platform Data is Social: How Publicity and Privacy are Vital to Data Governance

Executive Summary

Canada, like many nations, is proposing legislation that treats privacy as a fundamental individual human right, most notably the Digital Charter Implementation Act, 2022 (Bill C-27). This brief by Prem Sylvester and Wendy Hui Kyong Chun argues that such proposals do not adequately account for how the social nature of platforms challenges the neat distinction between private and public spheres. Drawing on Hannah Arendt, the authors show that being on platforms is inherently social, blurring public and private at three levels: the technical architecture of networking devices that constantly leak data such as IP addresses and geolocation; algorithms that use correlated data to predict and shape social habits, making private desires appear as public; and platform designs that encourage people to interact publicly as if in a trusted private space while compelling them to court publicity to participate in social life. This blurring can expose vulnerable people, such as female influencers and Black activists, to harassment.

Because platforms collect this social data for private commercial benefit while individuals remain exposed to harmful inferences, the authors contend that individual-based privacy and publicity rights are insufficient. They call for two complementary forms of rights: privacy rights that protect the boundary between individuals and platforms against corporate data extraction, and public rights that let people engage in collective and public action without incurring collective harms. Building on publicity-rights case law and precedents such as Article 35 of the Civil Code of Québec, they propose a public-rights framework for data governance that would define what data about individuals and groups should never be collected, stored, or used, set the terms for genuine anonymity rather than mere de-identification, and prevent platforms from making problematic inferences that damage reputations or safety. Such a framework would recognize that the data platforms collect, store, use, and sell are inherently and unavoidably social.