In this ‘information age’, is privacy dead?

Privacy: A Very Short Introduction

By Raymond Wacks

Are celebrities entitled to privacy? Or do they forfeit their right? Is privacy possible online? Does the law adequately protect private lives? Should the media be more strictly controlled? What of your sensitive medical or financial data? Are they safe and secure? Has the Internet changed everything?

Newspapers are no longer the principal purveyors of news and information, and hence the publication of private facts has expanded exponentially. Blogs, Facebook, Twitter, and a myriad other outlets are available to all.

The pervasive mobile telephone fuels new privacy concerns: witness the current British hacking hullabaloo. The weapon is new, but the injury is the same. It is not, of course, technology itself that is the villain, but the mischief to which it is put. Nor has our appetite for gossip diminished. A sensationalist media continues to degrade the notion of a private domain to which individuals legitimately lay claim. Celebrity is frequently regarded as a licence to intrude.

Hardly a day passes without reports of yet another onslaught on our privacy. Most conspicuously, of course, is the fragility of personal information online. But other threats generated by the digital world abound: innovations in biometrics, CCTV surveillance, Radio Frequency Identification (RFID) systems, smart identity cards, and the manifold anti-terrorist measures all pose threats to this fundamental value – even in democratic societies.

At the same time, however, the disturbing explosion of private data through the escalation of the numerous online contrivances of our Information Age renders simple generalities about the significance of privacy problematic. Is privacy dead?

The manner in which information is collected, stored, exchanged, and used has changed forever – and with it, the character of the threats to individual privacy. The electronic revolution touches almost every part of our lives. But is the price of the advances in technology too high? Do we remain a free society when we surrender our right to be unobserved  – even when the ends are beneficial?

Although the law is a crucial instrument in the protection of privacy (and it is locked in a struggle to keep apace with the relentless advances in technology), the subject has many other dimensions: social, cultural, political, psychological, and philosophical. The concept of privacy is not easy to nail down, despite the attempts of many scholars and judges.

The courts have boldly sought to offer refuge from an increasingly intrusive media. Recent years have witnessed a deluge of civil suits by celebrities seeking to salvage what remains of their privacy. An extensive body of case law has appeared in many common law jurisdictions over the last decade. And it shows no sign of abating. For example the supermodel Naomi Campbell succeeded in the House of Lords in her claim against the Daily Mirror that published an article revealing her drug addiction, details of her treatment, and photographs of her outside a meeting of Narcotics Anonymous.

In Britain, the current Leveson Inquiry into the culture, practice, and ethics of the press, sparked by the alleged hacking of telephones by the News of the World, is likely to reveal a significantly greater degree of media intrusion than is now evident. It may well propose legislative protection to buttress – or even replace – those judicial remedies fashioned by the courts.

A comprehensive privacy statute may well be the most effective solution. Carefully drafted legislation, such as exists in four Canadian provinces, would provide a remedy for intrusion and gratuitous publicity. Key elements of any such legislation should include an objective standard of liability, as well as several defences (including consent, public interest, and privilege).

Freedom of speech is, of course, no less important, and any statute will inevitably ensure that it receives explicit recognition. The two rights are often thought to be in conflict, but they are frequently complementary. How, for example, can you exercise your right to free speech when your telephone is hacked or your email messages intercepted?

Privacy is accorded superior safeguards in Europe than in the United States which has still to acknowledge the inadequacy of its reliance on the Supreme Court to protect privacy against an escalating digital onslaught. Much of its common law privacy protection is based on the Fourth Amendment to the Constitution which protects the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It would be more effective if the government were to ratify the Council of Europe Privacy Convention. This would mark a significant step towards safeguarding this rapidly eroding right. The United States lags far behind the more than fifty countries with comprehensive data protection legislation. It surely cannot continue to seek eighteenth century remedies to twenty-first century challenges.

In the case of film stars, models, pop stars, and other public figures, it seems that our – frequently lurid – interest in their private lives spawns a thirst for intimate facts which many tabloids are more than willing to satisfy.

Raymond Wacks is Emeritus Professor of Law and Legal Theory. He has published widely on the subject of privacy for almost four decades, most recently Privacy: A Very Short Introduction. In 2013, Oxford University Press will publish his Privacy and Media Freedom.

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