Soft Ethics: Its Application to the General Data Protection Regulation and Its Dual Advantage
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1 Hard and Soft Ethics
In a previous article (Floridi 2018), I introduced the distinction between hard and soft ethics. Since the reader may not be familiar with it, let me quickly summarise it here. I will then be able to use it to clarify two issues: the application of soft ethics to the General Data Protection Regulation (henceforth GDPR) and the idea that soft ethics has a dual advantage.
Hard ethics is what we usually have in mind when discussing values, rights, duties and responsibilities—or, more broadly, what is morally right or wrong and what ought or ought not to be done—in the course of making choices or taking decisions in general and of formulating new legal norms or challenging existing ones in particular. In short, hard ethics is what may contribute to making or shaping the law. In hard ethics, it is not true that “ought” implies “may”; it is perfectly reasonable to expect that “ought” may be followed by “even if not”. Call this the Rosa Parks Principle, for her famous refusal to obey the law and give up her bus seat in the “coloured section” to a white passenger, after the whites-only section was filled.
Soft ethics covers the same normative ground as hard ethics, but it does so by considering what ought and ought not to be done over and above the existing norms, not against them, or despite their scope, or to change them, or to by-pass them, e.g. in terms of self-regulation. In other words, soft ethics is post-compliance ethics because, in this case, “ought implies may” (or at least implies the absence of a “may not”). Call this the Matthew Principle, from Matthew 22:15–22: “Render to Caesar the things that are Caesar’s”.
Soft digital ethics can be rightly exercised in places of the world where digital regulation is already on the good side of the moral vs. immoral divide. But it would be a mistake to argue for a soft ethics approach to establish a normative framework when agents (especially governments and companies) are operating in contexts where human rights are disregarded, e.g. in China, North Korea or Russia, or in contexts where hard ethics is precisely what is needed to change some current regulation, e.g. in the USA when it comes to net neutrality, and, a fortiori, in the three countries already mentioned. In all these cases, we need hard ethics. It is really within the European Union (EU) that post-compliance soft ethics can currently be exercised, to help individuals, companies, governments and other organisations to take more and better advantage, morally speaking, of the opportunities offered by digital innovation. Because even in the EU, legislation is necessary but insufficient. It does not cover everything (nor should it), and agents should leverage digital ethics in order to assess and decide what role they wish to play in the infosphere, when regulations provide no simple or straightforward answer, when competing values and interests need to be balanced (or indeed when regulations provide no guidance) and when there is more that can be done over and above what the law strictly requires. This is why it is in the EU that a good use of soft ethics could lead to companies to exercise “good corporate citizenship” within a mature information society. The next question is then: given that digital regulation in the EU is now determined by the GDPR, what is the relation of soft and hard ethics with regard to it?
2 Soft Ethics as Ethical Framework
the Ethical Legal and Social Implications (ELSI) generated by the Articles in (B);
the Articles of the GDPR that generate (A);
the Recitals of the GDPR that help interpret the Articles in (B);
the Soft Ethical Framework that help interpret the Recitals in (C) and is coherent with the Hard Ethical Framework in (E);
the Hard Ethical Framework that helped generate the Articles in (B) and the Recitals in (C).
Hard ethics in (E) is what contributed to the process leading to the elaboration of the law, in this case, the GDPR. Soft ethics in (D) is the framework that contributes to enable the best interpretations of the Recitals in (C). For Soft Ethics in (D) to work well in interpreting the Recitals in (C), it must be coherent with, and informed by, the Hard Ethics in (E) that contributed to their formulation in the first place.
Clearly, the place of ethics is both before (hard) and after (soft) the law, as what contributes to make it possible first and may complement it afterwards. Let us now turn to its dual advantage.
3 Soft Ethics’ Dual Advantage
Digital technologies offer many opportunities but also associated challenges and potential risks. Ensuring socially preferable outcomes means resolving the tension between incorporating the benefits and mitigating the potential harms, in short, promoting these technologies while avoiding their misuse, underuse and harmful use. This is where the value of an ethical approach becomes obvious. I argued above that compliance is merely necessary, but significantly insufficient. Adopting a soft ethical approach to digital innovation, over and above what is legally required, confers what I would like to define as a “dual advantage”, echoing the “dual use” terminology popular in philosophy of technology at least since the debate on civil and military uses of nuclear power. Let me explain.
On the one hand, soft ethics can provide the advantage of an opportunity strategy, enabling actors to take advantage of the social value of digital technologies. This is the advantage of being able to identify and seize new opportunities that are socially acceptable or preferable, balancing any precautionary principle with the duty not to omit what could and ought to be done, e.g. to take advantage of the wealth of data accumulated, or the forms of smart automatic agency available.
On the other hand, soft ethics also provides the advantage of a risk management solution. It enables organisations to anticipate and avoid costly mistakes (the Cambridge Analytica scandal involving Facebook data is an unfortunate example). This is the advantage of prevention and mitigation of courses of action that turn out to be socially unacceptable and hence rejected, even if they are not illegal. In this way, soft ethics can also lower the opportunity costs caused by choices not made or opportunities not seized for fear of mistakes.
Soft ethics’ dual advantage can only function in an environment of public trust and clear responsibilities more broadly. Public acceptance and adoption of digital technologies, including artificial intelligence, will occur only if the benefits are seen as meaningful and risks as potential, yet preventable, minimisable or at least something against which one can be protected. These attitudes will depend in turn on public engagement with the development of digital technologies, openness about how they operate and understandable, widely accessible mechanisms of regulation and redress. The clear value to any organisation of the dual advantage of an ethical approach amply justifies the expense of engagement, openness and contestability that such an approach requires. Ethics can be expensive, but this is a clear case in which those who spend more spend less.
See for example “C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González” http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&. or domestic CCTV and Directive 95/46/EC (European Court of Justice (ECJ) Judgment in Case C-212/13 Ryneš): http://amberhawk.typepad.com/amberhawk/2014/12/what-does-the-ecj-ryne%C5%A1-ruling-mean-for-the-domestic-purpose-exemption.html
European Digital Rights, Comparison of the Parliament and Council Text on the General Data Protection Regulation https://edri.org/files/EP_Council_Comparison.pdf