Gehan Gunasekara: why privacy matters now more than ever

When Gehan Gunasekara and his family left Sri Lanka in 1974 with three pounds sterling, there was no looking back.

The only way was forward, to a land he had pored over in glossy tourism brochures; where ice creams were huge, and rugby was even bigger.

So big, in fact, that seven years later, the sport bitterly divided the nation. At the time of the 1981 Springbok Tour, Gehan was a student at Whanganui Collegiate School, and when the school gave students an August afternoon off to watch the South African rugby team play at Spriggens Park, he elected to join an anti-tour march instead.

That initial activism subsequently led him to take part in demonstrations supporting nuclear-free New Zealand and consider studying law.

“I was proud of the fact that I stood up for what I believed. I saw that if you wanted something, you had to fight and advocate for it,” says Gehan.

That sentiment hasn’t waned. Today, the Business School professor’s research focuses on approaches to protecting personal information and whether they remain fit for purpose in a world where people have little bargaining power against large corporations. It provides an opportunity to challenge the status quo and advocate for change, he says – something that first drew him to law as a teenager. 

During his inaugural professorial lecture on 16 June, ‘Is it personal? Uncovering the many faces of privacy’, Gehan explored the tension between protecting information and the need to share it.

“Individuals have virtually no power against corporations; on our own we just tick ‘consent’ because we have no real choice.

“My activism taught me that if you want something to change, you have to fight for it and mobilise people, and I’ve taken that lesson into privacy law.

“The challenge now is to build legal frameworks that let people act collectively, so privacy protections actually mean something.”

No going back

Gehan grew up negotiating changing times and circumstances.

His early childhood was spent on the outskirts of Colombo in a home his parents designed. It had an interior fishpond and coconut trees in the garden.

He was a “free-range kid”, but Sri Lanka was changing. During the second term of Sirimavo Bandaranaike, the world’s first female prime minister, a push for national self-sufficiency created widespread shortages. Families queued for rice, milk powder and bread. 

Schools increasingly taught only in Sinhala. Gehan’s public servant dad, Neville, and anaesthetist mum, Tilina, wanted their children to speak fluent English and to have the chance to study and work overseas.

“That government became increasingly authoritarian. As kids, we were told to be careful about what we said to strangers.”

When the Gunasekaras decided to leave their home for New Zealand, Gehan was 11, his sister Menik was 13, and his brother Sanji was 18 months old.

Under the government at the time, they weren’t allowed to leave with much. The family sold their home, distributed the profits and any savings among relatives and left with all that was allowed: those three pounds.
“There was no going back,” says Gehan. “As a result, I was motivated for our new life; I was told, ‘this is it’.

“When we got to New Zealand, I was excited to find that the ice cream portions were enormous. It was more than I could eat. It was like paradise.”

The family settled in Whanganui, where his mum worked at Whanganui Hospital. “The people in Whanganui, particularly the hospital community, were incredibly kind and generous,” he says. “They knew that as Sri Lankans, we would be arriving in pretty dire straits.”

At Whanganui Collegiate School, Gehan believes he was the first South Asian student, and most classmates had never heard of Sri Lanka. Among around 500 boys, there was one Māori student and one Chinese student. “There was definitely some cultural ignorance,” he recalls.

The school was also rugby obsessed, so as a non-sporty kid, Gehan joined the school band, learning the saxophone, which he still enjoys playing today.

In his final year, he scooped a number of academic prizes and, inspired by those early experiences of activism and interested in the law’s ability to shape policy and improve people’s lives, he chose to study law at Victoria University of Wellington. He worked as a summer law clerk in Whanganui, and although it was interesting at times, “it was also tedious and involved a lot of paper pushing”, he recalls. 

Matters of privacy

He moved into academia after landing a junior lecturing role at Massey University. During this time, he grew to love teaching, and his philosophy remains the same to this day: “If students enjoy the experience, they’ll learn.”

While travelling in the US, he met his wife Aruni, whose family had also left Sri Lanka at around the same time as the Gunasekaras. They maintained a long-distance relationship before eventually building a life together in New Zealand. Aruni worked in school administration and was the primary caregiver for their two children, Darren and Caitlin.

“She’s been my biggest support,” he says.

Gehan went on to do his Master of Laws at Victoria before transferring to the University of Auckland, graduating around the same time Darren was born. Soon after, Gehan was offered a lecturing position in the Department of Commercial Law at the University’s Tāmaki Campus.

“The head of department, Professor Ian Eagles, was a great mentor, encouraging me to get going straight away with research.

“I hit the ground running, and I got some very good early publications into English journals. There was a colonial mentality that you have to publish internationally, ‘New Zealand doesn’t count’, kind of thing.”

When Gehan began researching privacy, many of his colleagues thought he was wasting his time. New Zealand’s first Privacy Act had only recently come into force and privacy law was a niche field.

“One of my information systems colleagues, Lech Janczewski, was really curious about the Act, and so I looked into it.

“Lech and I wrote a few things together with other colleagues: conference papers, book chapters, and co-authored articles in mainly information systems journals.”

Still, not everyone was convinced. “Colleagues said, ‘It’s not serious law; you’re going down the wrong track’. They said it was a ‘sissy’ subject, ‘You should be doing mergers and acquisitions’, but I persevered.”

Gehan was well placed when Web 2.0 arrived; suddenly, privacy was a big thing.

He went on to become a member of the academic reference committee for the New Zealand Law Commission’s privacy review, providing advice on updating the Privacy Act. He later helped establish the Privacy Foundation New Zealand, a not-for-profit organisation that advocates for stronger privacy protections.

Another area that caught Gehan’s attention was franchise regulation. Frequent trips to the US to visit Aruni’s family exposed him to franchise regulation that didn’t exist in New Zealand. He was concerned about the vulnerability of franchisees here and advocated for reform.

“Communicating effectively with the public through the media, through conferences, can really influence change,” he says.

Some of his work ultimately influenced amendments to New Zealand’s Fair Trading Act. He points to provisions that closely reflect recommendations contained in his co authored research.

Digging into data rights

During his inaugural lecture, he talked about some of his current research. Drawing on te ao Māori concepts, including the legal personhood framework established for the Whanganui River, Gehan is examining whether groups with shared characteristics might have rights over their data.

“The law needs to somehow accommodate data collectives, and that’s where my research is currently heading. My focus is on building the theoretical foundation for why these arrangements should be recognised in law,” he says.

“The analogy I draw is with the emergence of corporations 200 years ago. People were able to aggregate capital for a collective purpose. If data is the new oil, people should be able to aggregate data in a similar way, without handing ownership to corporations. That’s why I’m exploring the idea that data could own itself, with people holding rights over it.”

His inaugural lecture was also an opportunity to acknowledge those close to him. His father, mother, brother, wife and children were in the audience, alongside other family, friends and colleagues from around the world. Gehan’s father, aged 99, attended despite being recently hospitalised, and the professor spoke of the enormous influence he had on his life.

“Dad never went to university and was educated at a time of British colonial rule. He taught me early on that if you felt strongly enough about something you had to be able to put it down in writing, to make a convincing point,” he says.

“This lesson has proved invaluable over the years.” 

By Sophie Boladeras