Sunday, 7 August 2011

Privacy law: black and white and shades of grey

Does "privacy" have some binary quality?

Do you have privacy, or you don't?

And if you don't, does that make you then "fair game" for intrusions by strangers?

Does it make you "fair game" for the tabloid media for the publication of your personal information and photographs of you to their readers?

Take for example, John, a gay man.

John was not quite the only gay in the village, but his family and neighbours back home have no idea of his sexuality and, being reactionary and religious sorts, they would rather disapprove. He would rather they didn't know.

John, however, freely walks around central London with his boyfriend. Sometimes they hold hands; sometimes they even kiss in public. Nobody in London really notices; nobody in London really cares.

He is not a celebrity, and he has certainly never made any public pronouncement about sexuality. It would never have crossed his mind.

But one day, without his fault, he gets mixed up in a major news story, as members of the public can do. A tabloid now wants to splash a story about him and his boyfriend, with a photograph taken surreptitiously as they walk down Oxford Street; even worse, it is the tabloid his parents' read. Stephen the reporter phones John up first, so as to "get his side of the story". Stephen considers John's actions in the street as "fair game".

Does John have any "right" to privacy in these circumstances?

Should John have the right to determine when to tell his family and family's neighbours about his sexuality, or even to elect not to tell them at all? He is not a public figure, nor has he sought fame; but he is no longer in charge of when such personal information is to be published not only to those back home, but to the world.

Does the simple fact that he held hands with a man and kissed him in public in London mean that, in an instant, he loses his privacy rights about his sexuality?

Or are there things one can do nominally in "public" which do not trigger any right for any stranger to broadcast that thing to everyone else?

Scenarios like this provide the complications for the emerging law of privacy.

The difficult examples (at least for some) are those where a person is in public - say a beach or a quiet town or street - but has a subjective expectation of privacy. Should that expectation be protected by the law in any way and, if so, how?

Such privacy can work both ways: it isn't just about the Johns of this world. Indeed, little known to John, his parents and their neighbours - even with their backward opinions about homosexuality - or go down a local public house on swingers' evenings. They too do "private" things in "public" places, and they would not want John to know.

And Stephen, the tabloid reporter who wants to expose John, also routinely receives "private" information from his sources in public places, perhaps in the street or in snack bars, or chatting on his mobile telephone. Is that information also now "public"? Can anyone publish it? If what John does in public "fair game" why is that not true for Stephen the tabloid journalist?

In fact, all people want privacy in nominally public places. If every act outside the home or workplace was to be shown to the world then people would surely not be able to properly function under the glare.

But that said, it is less clear where the law - the formal ability to enforce rules backed with coercive force - should intervene.

If privacy in public places consists of shades of grey, how does the black-and-white world of the law fit in?


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


Ian Phillips said...

Well, these are fairly simple questions to answer.

"Does the simple fact that he held hands with a man and kissed him in public in London mean that […] he loses his privacy rights about his sexuality?"


"a person is in public […] but has a subjective expectation of privacy. Should that expectation be protected by the law in any way and, if so, how?"


"Stephen, the tabloid reporter […] receives "private" information from his sources in public places, […] Is that information also now "public"?"


There, simples.

The interesting/difficult question then becomes: what counts as a public place? If Alice meets Bob in a restaurant (a private business) but is overhear by Eve, is the conversation "public" or not?

Unfortunately I don;t think that there's an easy answer to that one.

Laura Cassap (@ElsieAssap) said...

The dilema that we are left with when we rely on legal guidelines rather than moral ones, - a society that relies soley on the law to determine what is right or wrong has lost its way.

Crosbie Fitch said...

Ian, I come to the same answers.

I recognise a natural right to privacy and it must therefore be physical - 'black & white' - not a fuzzily subjective assessment of how upset or wealthy particular persons may be in the opinion of a judge, following embarrassing albeit public acts becoming widely publicised.

Privacy is not the privilege of gagging others to keep embarrassing acts or confidences secret - though many would like it to be (including judges).

Privacy is a right of the individual - a physically delimited boundary about them. It is irrelevant to their privacy as to whether they are in a public or private place. Just because you are on a beach that doesn't mean you can have no privacy. Conversely, just because you are in a private restaurant that doesn't mean you can gag people at an adjacent table who overhear your embarrassing propositions. The answer is easy: if your neighbour (whose proximity is clear) is naturally able to overhear your conversation then they are naturally at liberty to disclose it (though their discretion may disincline them to do so).

Privacy is violated by physical invasion and disclosure, not by unwanted publicity of non-private acts. Thus a bug left under a cruet is an invasion of privacy, and publication of discussions so overheard is a violation of privacy.

Steve Jones said...

If you say one thing in private to one group of people yet do something completely different, that's deception - pure and simple. There is always the danger it will found out, especially if in public. Basically the rule has to be be prepared and deal with it.

Expanding the scope of state control over what is said and communicated is a slippery slope.

Laws of privacy should be about means and methods employed (bugging, intrusions etc.) and duties of confidentiality in a formal sense (client relationships, companies holding data etc.). When the state empowers the law to censor the expression of individuals, then it goes too far. Exceptions need to be made for minors and other vulnerable people, but in general, people have a responsibility for the consequences of their own behaviour.

Sandrine lopez said...

I'm not entirely I agree with the view that - if you unwittingly become involved with a news event - your private life is suddenly an open book for the media to publish. Would these same reporters like it if their private lives were splashed all over the media during the course of their work? I very much doubt it.

Some people deliberately, because of concerns about family & friends finding out, have relationships away from their usual locality. It's a different kind of privacy but it is *still* privacy, and not something I think the media has any right to intrude in - unless (and always the debatable caveat) it is *truly* in the public interest (e.g. an important public figure & whether what he/she is doing breaks any level of public trust).

Maria Wolters said...

I'm wondering whether you'll assume a British / American perspective, or whether you'll look at international practices, as well, if only to highlight where different points of view come into it.

Also, in practice, it's not as simples as Ian says. If John were a French politician, John would be protected by a tradition that says that politicians' sex lives are not fair game for the press.

In the case of Stephen, wider ethical considerations come into play. It's one thing to talk about private issues in public places, but it also matters how you talk about it (in a low voice, making sure it's very difficult to hear what you're saying versus braying your deepest secrets into your mobile), and what you say.

As far as I know (but I am not a lawyer, and the only legal system I am faintly familiar with is German), none of these practices or ethical considerations are enshrined in law, but nevertheless they are enforced socially.

Anne said...

I, perhaps naïvely, don't see that other people's sexual activities or preferences (unless illegal) are of any concern to anyone else. It doesn't matter whether that person is famous or unknown, rich or poor.
I also have no interest in what they wear, where they shop, whether they were wearing underwear whilst getting out of a taxi, whether they were drunk and so on and so on. If someone's actiities are against the law or dangerous to society then of course we need to know, but much media reporting of the minutiae of the lives of others just seems prurient.

Steve Jones said...


The question wasn't about what is or is not the proper scope of media reporting. The question was about the role of law. In other words would you enshrine your principles into something legally enforceable.

Sandrine Lopez said...

Anne said:
"I, perhaps naïvely, don't see that other people's sexual activities or preferences (unless illegal) are of any concern to anyone else. It doesn't matter whether that person is famous or unknown, rich or poor.
I also have no interest in what they wear, where they shop, whether they were wearing underwear whilst getting out of a taxi, whether they were drunk and so on and so on. If someone's actiities are against the law or dangerous to society then of course we need to know, but much media reporting of the minutiae of the lives of others just seems prurient."

I agree with you complete, Anne. I have no real interest in that kind of thing. Sadly, others do seem to have that interest, or is it just pumped up by the media - especially the tabloids - as being of interest to the public? Celebrities, that is people who have chosen to be in the public eye, probably realise that some loss of privacy is inevitable. But does the average person in the street want or have to be subjected to that invasiveness, beyond their control, because of a news happenstance? I say no.

Akheloios said...

Why would the life story of an individual not come under intellectual copyright?

In 'John's' case above, the fact that he is homosexual is a key part of his life story and could possibly be monetised at some future point if he so chose. Why isn't that protected by intellectual property rights? Especially seeing as the release of the fact certainly has no public interest defence.

I'm a supporter of free speech, but in this environment of rapidly diminishing intellectual rights, the end to fair use being a prime example, why wouldn't this be, unfortunately, the next logical step?

That point aside, I'd like to raise the idea of blackmail, why is threatening to expose 'John's' homosexuality unless he pays £50,000, any different from making £50,000 in extra newspaper sales by exposing the fact of his homosexuality? Why is making money by threatening to reveal the fact worse than making money by actually revealing it without permission?

Amrynel said...

The law must be sure to recognise both physical privacy and illusory privacy, as distinct and equally valid concepts, and that the latter is a superset of the former and important to human well-being and social harmony.

As our technology advances and proliferates, the individual's ability to obtain physical privacy against all comers shrinks. Maintaining illusory privacy in the absence of physical privacy requires the "deliberate ignorance" of society and its representatives (e.g. the government, the press).

As you note, the law involves coercive force. That force should only be used to uphold the social contract if milder measures fail. I would suggest that the law not go beyond deterring piercings of the "social veil" of illusory privacy that are committed for deliberate menace or commercial exploitation. Some of this may well already be covered by existing legislation.

In the example given, "fair game" is deceptive shorthand for "I can do this to you, and you can't stop me". If the tabloid had simply published a major news story and it happened that John and his boyfriend were in the background, that is happenstance. When the tabloid turned its focus upon John and his boyfriend, that became commercial exploitation of their sexuality. Stephen isn't doing this for the public good, and there is no "quid pro quo" for John and his partner (indeed there is the distinct possibility of harm).

davoblog said...

The so-called right to privacy is a broad issue without concise tenets that can be applied universally to any situation. For example, there is a distinction between the right of protection from the public examination and comment on one's behavior, even when it is in full public view as with two gay men wishing to demonstrate to each other their affection on one hand, and the 'right' to control the dissemination and uses of information pertaining to an individual, even (especially?) when that information is assembled by third parties at their own expense and for their own purposes.

Under these circumstances, the natural owners of such assembled data is presently a grey area.
I would like to propose, and would welcome opinions on the idea, that privacy should be grounded in the notion that everyone is the natural owner of the information which pertains to them. Your buying habits, your DNA .. all information about you is YOUR own natural private property from which you cannot be separated. Thus, when this information is used for any purpose, you are the primary stakeholder. We know already that such information has a non-zero monetary value because people are willing to go to the trouble of collecting it and others are willing to pay real money for it. But you, as the natural owner, should be the agent that decides how this information my be used. You have the right to demand a share in the profits gained by its sale.
I understand that there are many questions about who should have access to an individual's information, the government for example, but in my view, the natural owners of individual information, the natural stakeholders, should be empowered to exercise their rights over their own natural private property.
I believe that personal information is a vast resource which is being stolen from its natural and rightful owners who are powerless to defend what is naturally theirs.

Anne said...

@Steve Jones asks "would you enshrine your principles into something legally enforceable"? That is a question I didn't feel able to answer, so I (cowardly) avoided doing so.

davoblog said...

Yes I would, and I don't think you're being cowardly about it. I think that a difficult problem with the gaining of any civil right is that those who the right applies to must first discard the accepted belief that they are not entitled to that right.
Our ideas about privacy are strongly couched in the evolution of how privacy has been treated in society. This idea is an essential component of the rights of an individual in society, but until the technology rules changed and it became possible to transmit the entire printed contents of the Library of Congress in under 5 seconds the value and power of our personal information was not so blatantly visible.

Bryan Feeney said...

The Bagehot columnist for the Economist had an interesting take on this. Working off a comparative study, in which Sweden came out well, he noted that

"The big thing is this: when Swedish journalists write about public figures, they enjoy a strong public interest defence (much stronger than any public interest defence that exists in Britain) with special protections for fair comment and opinion. But the definition of who is a public figure is drawn narrowly. Ola Sigvardsson, the Swedish press ombudsman (who is the first port of call for any complaint against the press) told me that public persons meant people such as politicians, senior officials or corporate leaders. Crucially, footballers, film stars or reality television performers are not considered public figures. So their privacy is pretty strongly protected by the ethics code (though not by a formal privacy law)."

So in this case, if John were not a public person as defined by the law, the press could not publicly broadcast what he does with his time, even if he does it in public.

Kimpatsu said...

does this mean that CCTV is violating my right to privacy when it films me walking down Oxford Street? I do hope so, because then we could force all those Orwellian cameras to be taken down.

davoblog said...

As with many aspects of private property vs public good, there a balance is needed between the public benefit served by collecting and assembling privately owned information on one hand, and the rights of the individual owner on the other. The authorities will argue that filming people in Oxford street has the benefit of keeping down crime and maintaining public order. However, once that information has served its purposed, the rightful owner should have the power to insist that it be destroyed. Any assemblage of private information for the so-called public good should only be allowed under well defined conditions established by legislation and constitutionally defensible in court. After the information has served this well defined purpose, the natural owner has the right to determine its fate.

Court No. 83 said...

There's a data protection issue here, isn't there? The newspaper will have sensitive personal data regarding John as part of a relevant filing system. So there's going to have to be a fairly strong reason for processing that data by publishing them.

FishNChipPapers said...

I don't think privacy is a thing - it's about control i.e. an individual has a right to control what information about them is revealed and to whom unless there is a sound legal reason - public interest - for that control to be wrested from them.

In the case of celebrities they have a right to control the information and it's part of a trade. Some celebrities relinquish more control than others for greater exposure/publicity. However, they still retain the right to control information they chose not to release.

In the case of John he retains the right to control the release of that information to his parents

The argument that a public place means no control would presumably legitimise eavesdropping on conversations or telephone calls. It may not be illegal but is it moral?

davoblog said...

There always will (and should) be a tension between the right of individual privacy and the right of the public to be informed. Perhaps there are a number of categories of information, one of them being 'public information' which includes all non-secret government data and the utterances and actions of public figures. Another way to handle this is to say that all information is private and rely on the fact that a public figure who keeps his/her information strictly to themselves will be at a disadvantage to others who are open. Another possibility is that a public figure who makes a statement implicitly opens his/her information for scrutiny on any issue they comment on.
As for information management by newspapers and others: they accept a risk of liability if they chose to handle someone else's information in the same way as when they manage any piece of property of another person.

Surreptitious Evil said...

@Court 83.

Data protection? I'm not so sure. "The special purposes", including journalism, specifically exempt the right to prevent processing "likely to cause damage or distress" and all bar the 7th data principle. As the special protections for sensitive personal data apply to the excluded first principle, you might have problems making the case.

Compare this with the equally protected "commission or alleged commission by him of any offence", something that is regularly discussed in the press.

And there is a further issue - one of the Schedule 3 acceeptable reasons for processing sensitive data is "information contained in the personal data has been made public as a result of steps deliberately taken by the data subject. Which John has done, to an arguable extent, by being out in public holding hands with his boyfriend.

I'm not arguing that this is reasonable, just that is is the way the legislation is written.