An Emergent Legal Concept
by Clare Sullivan
FREE | 2011 | Electronic (PDF) | 978-0-9807230-0-7 | 178 pp
This is the first full-length study of digital identity in a transactional context, from a legal perspective.
Clare Sullivan's analysis reveals the emergence of a distinct, new legal concept of identity. This concept is particularly clear under a national identity scheme such as the United Kingdom and Indian schemes. However, its emergence is evident even in jurisdictions, like Australia, which do not have a formal national identity scheme. Much of the analysis can also be extrapolated to proprietary schemes such as those run by banks and other businesses.
An individual’s digital identity which is used for transactional purposes has crucial functions which give it legal personality. The author argues that an individual’s digital identity also has the characteristics of property which can, and should, be legally protected. Identity theft is defined using the emergent concept and the study shows that digital identity is property which capable of actually being stolen and criminally damaged.
The study examines the emergence of attendant legal rights and duties including a new right to digital identity and its legal protection. Dr Sullivan argues that an individual has the right to an accurate, functional digital identity and shows that this right exists in addition to the right to privacy.
Dr Sullivan maintains that, considering the essentially public nature of identity, the right to identity provides better, and more appropriate, protection than is afforded by the right to privacy. She asserts that the importance of the right to identity in this context has been obscured by the focus on privacy in international legal scholarship and jurisprudence.
The functions and legal nature of digital identity are analysed using real examples which highlight the implications for individuals, businesses and government. The findings have the potential to fundamentally change the way digital identity is legally and commercially regarded.
About the author
Clare Sullivan, a former research fellow with the University of Adelaide, was awarded the 2011 Fulbright South Australia Scholarship to spend four months at George Washington University in the United States. The South Australia Scholarship was supported by the South Australian Government and South Australian based universities, and was launched in 2009.
'In today's digital environment the concept of identity is an issue of much greater complexity than it was in the days of the offline world. Our digital identity can exist in many forms and for many different purposes. Its existence on the Web becomes a currency that can be unscrupulously traded and abused.
It has never been more important to protect the concept of "who we are". We are at the beginning of a new discipline of Web Science in which such issues need to be researched across disciplines. This text offers an excellent starting point for work in this area.'
Professor Stephen Saxby, School of Law, University of Southampton.