Free Speech Debate

Thirteen languages. Ten principles. One conversation.

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1We – all human beings – must be free and able to express ourselves, and to seek, receive and impart information and ideas, regardless of frontiers.»
2We defend the internet and all other forms of communication against illegitimate encroachments by both public and private powers.»
3We require and create open, diverse media so we can make well-informed decisions and participate fully in political life.»
4We speak openly and with civility about all kinds of human difference.»
5We allow no taboos in the discussion and dissemination of knowledge.»
6We neither make threats of violence nor accept violent intimidation.»
7We respect the believer but not necessarily the content of the belief.»
8We are all entitled to a private life but should accept such scrutiny as is in the public interest.»
9We should be able to counter slurs on our reputations without stifling legitimate debate.»
10We must be free to challenge all limits to freedom of expression and information justified on such grounds as national security, public order, morality and the protection of intellectual property.»

What’s missing?

Is there a vital area we have not addressed? A principle 11? An illuminating case study? Read other people's suggestions and add your own here. Or start the debate in your own language.

Timothy Garton Ash | An explanation

Free speech and privacy

Imagine that everything you express to the person closest to you, in your most intimate moments, is immediately posted online for all the world to see. This would not just be a nightmare of embarrassment; it would also mean that you would express yourself less freely. As anyone who has lived in a police state knows, if you fear that someone else might be listening, you no longer speak your mind. So privacy is not just an important, legitimate limit to free speech. Privacy is a condition for free speech.

What is privacy? What is the public interest?

Our eighth draft principle identifies the main good reason there is for intruding into what should otherwise be our own private affairs: the public interest. The question then becomes: what is privacy and what is the public interest? The answers are not simple.

All known human cultures have had some notion of privacy, but what is seen as private has varied enormously with time and place. The good citizens of the ancient Roman city of Ephesus sat together to defecate. In contemporary Germany, nudity in public parks is accepted, while it is not in most other countries. Click here to tell us what privacy means in your country.

On the whole, most European countries have a broader definition of privacy than the US has – and are more ready to curb free expression to defend it. A French court judgment from 1970 says expansively that the privacy article of the country’s civil code protects “the right to one’s name, one’s image, one’s intimacy, one’s honour and reputation, one’s own biography, and the right to have one’s past transgressions forgotten”. Dominique Strauss-Kahn might be pleased with that. But wasn’t there a genuine public interest in French voters knowing about their likely presidential candidate’s predatory record in relation to women?

Yet the definition of the public interest is also hotly contested. Editors of sensationalist tabloid newspapers and gossip-mongering websites invoke it to justify their latest revelations about the private lives of football players or pop stars. But the public interest is not the same as  “what interests the public” – and therefore sells newspapers or drives traffic to websites. If the two were equated, celebrities would have no privacy at all, since some members of the public are interested in every aspect of their lives. There’s a useful discussion of what the public interest does mean here. People who are public figures should obviously expect more scrutiny than purely private individuals. That still leaves you having to define who is a public figure.

As so often with freedom of expression, context is all. If I have sex with another adult who is not my publicly acknowledged life-partner, that is my own private matter. If, however, I am an influential preacher, constantly lauding the sanctity of marriage, it becomes a matter of public interest. If a defence minister has a lover, that is his or her own affair; if that lover is the agent of a hostile power, it is a matter of public interest. If I have shares in an oil company, that is my own business; if I am a government official, responsible for handing out lucrative contracts to oil companies, then my shareholding in that company becomes a matter of public interest – but my other investments may still not be. If I have a medical condition, which makes it difficult for me to do simple arithmetical sums, that is my problem; if I stand for the office of city treasurer, it becomes a matter of public interest (but perhaps only for people in that city, not the whole world). If I had bad grades at school or university, that is private; if I am standing for election as president of the US, it becomes a matter of public interest.

There are a thousand individual judgment calls to be made, not just by judges in courts of law, but by editors, teachers, employers, doctors and every one of us. Yet the basic principle is not complicated. From case to case, we balance privacy against the public interest.

“Privacy is dead. Get over it.”

The internet age has, however, transformed the conditions in which we strike this balance. Personal information which forty years ago would have been kept in one or two dusty paper copies is now stored electronically – and, unless you are careful, and technically savvy, accessible to many others. In addition, there are vast new troves of data which simply did not exist forty years ago: your online search history, your mobile phone tracking your location, your emails, your credit card history. A little-known American data storage company called Acxiom holds, on its giant servers in Conway, Arkansas, up to 1,500 individual items of personal data on 96% of American households and some half a billion people worldwide.

The sum total of personal information stored on computers about every ordinary citizen of a developed country exceeds the wildest dreams of George Orwell’s Big Brother. This data (sometimes partly anonymised) is routinely mined and shared by private companies to offer you personalised, customised advertising and services – but also to deliver you, as a commercial target, to advertisers and service providers. You are the user, but also the used. “If you’re not paying for something,” writes Andrew Lewis (under the alias Blue Beetle) on the website MetaFilter, “you’re not the customer; you’re the product being sold.”

The accelerating development of technology offers ever more Orwellian possibilities. Google Street View has captured women sunbathing on the roofs of their own apartment blocks, believing they were in private. Google and Facebook have developed face recognition technology, which might enable them to link together all an individual’s appearances online. The GPS location systems in mobile phones, and radio frequency identifier tags on things like London’s Oyster transport payment card, mean that your movements in the physical world can potentially be tracked alongside your online activity.

Even in the world’s freest countries, some or all of this data is also mined and shared by government agencies which have – in the name of keeping their citizens safe from terrorists, gangsters and paedophiles – arrogated to themselves extraordinary powers of covert intrusion. An official report by Britain’s interception of communications commissioner reveals that in 2010, 552,550 requests for communications data were submitted by public authorities ranging from the intelligence and security services to local councils. Oxford University internet security expert Ian Brown comments on this here.

Google has tried to reveal something about the range of such requests from governments around the world in its Transparency Report. But in the US, there is a category of national security order which compels internet service providers to divulge detail about specified users and simultaneously forbids them from revealing even the very existence of that order. “But can you at least tell me roughly how many of these you receive?” I asked, when I spoke to senior legal figures at Facebook and Twitter in summer 2011. No, they confessed with a mixture of embarrassment and frustration, they could not even tell me that.

In an important sense, these public and private powers can know more about you than you do yourself. For you will have forgotten or selectively re-remembered much of your own past – and especially, human nature being what it is, the more embarrassing bits. The computer coldly remembers it all. And that is even before we get to the photos and confessions that you have knowingly posted on Facebook, Renren, Vkontakte or other social media.

“Privacy is dead. Get over it.” Such was the drastic conclusion reportedly drawn by one Silicon Valley chief executive, Scott McNealy of Sun Microsystems. As with many famous quotations, he may not have said exactly that but this was certainly the spirit of his remarks.

Take a few examples of what this can mean. In America, an 18-year old student at Rutgers University, Tyler Clementi, was covertly filmed by his roommate as he became intimate with another man. The roommate streamed the video from his computer’s webcam online, for all the world to see. Distraught, Tyler jumped off the George Washington Bridge into the Hudson River and killed himself. (His farewell message on Facebook read: “Jumping off the gw bridge, sorry.”) In China, so-called “human flesh search engines” identified and hounded a woman called Wang Yu, who had been privately filmed by a friend crushing a kitten with her high heels. When Google launched its social network called Buzz, a woman known by the alias of “Harriet Jacobs”, who was living in hiding from a physically abusive parents and husband, found all her personal contacts from her Gmail account shared with all others. “My privacy concerns are not trite,” she wrote in her pseudonymous blog. “They are linked to my actual physical safety.”

What can we do about it?

Are we happy to settle for that? If not, what can we do about it? When you registered with an online or mobile service you almost certainly clicked an “Accept” button on a small-print legal document called something like Terms and Conditions. Did you stop to read it? I don’t. Even if we had, we would have found a lot of catch-all, legal wording. (I’m afraid that applies to this website too, but we have spelled out our Privacy policy as clearly as possible here.)

If we believe that free speech (and a good society altogether) requires some privacy, we need to understand better how much privacy we are giving away – and make a fuss about it if we think it’s too much. Even if these service providers have a dominant market position in your country, they are still dependent on your business. And some of them, some of the time, do respond to public pressure. A public outcry forced Google to suspend and substantially improve its Buzz network, and subsequently subsumed it in Google+, and Facebook to withdraw its Beacon targeted advertisement system.

There are relatively simple technical steps you can take to reduce the amount of data gathered on you both by state agencies and by what cyberheretic Jaron Lanier provocatively calls “spying/advertising empires” such as Google and Facebook. Partly responding to such criticism, Google and other search engines have made it simpler for people to switch to a more anonymous form of search. The Electronic Frontier Foundation, which is a pioneer in this field, has designed a Firefox extension called HTTPS everywhere, which encrypts your communications with a number of major websites. You can use free software called Tor to help protect your privacy online.

Facebook and a “right to be forgotten”

But what if you have in the past freely shared things about yourself, which you now wish you had not? Take your private photos on Facebook for example. (Facebook now has the largest photo collection in the world.) Suppose you are embarrassed by those teenage high jinks. Suppose you fear that you may be refused a university place or a job because of what’s up there. After all, we know that employers and universities do go trawling online to see what they can find about applicants. What can you do?

Facebook’s current Statement of Rights and Responsibilities says that your photos remain your intellectual property (IP), but “you grant us [Facebook] a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use any IP content that you post on or in connection with Facebook (IP Licence). This IP Licence ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” (My italics.) So, yes, you can delete your past, but if those embarrassing photos were shared with your friends (in the extended, Facebook sense of the word), who shared them with their friends, then unless you can get them all to delete them, the embarrassing photos will still be up there. It would be easier to close Pandora’s box.

Should it be made easier? Should we have a more extensive “right to be forgotten”? If so, what should it cover? Who should or could enforce it? And how? Germany, for example, has a law, which says that after a certain period of time has elapsed, a person’s previous criminal convictions may not be reported. Like Germany itself after 1945, these individuals should have a chance to make a fresh start. Lawyers for German citizens tried to get Google to take down public reports of their prior convictions, even on the worldwide search engine. Google resisted.

The EU is one of the world’s most influential norm-setters in relation to privacy and data protection. Its Data Protection Directive has been described as setting the gold standard for privacy. In 2012, it will be coming up with a proposal for a revised data protection directive, taking account of many of the technical innovations discussed here – and perhaps also introducing elements of a “right to be forgotten”. We will be debating that as it emerges.

“We go out and destroy people’s lives”

The most obviously damaging public exposures of private life are those which reach millions of people through the mass media. In summer 2011, Britain was convulsed by the revelation that newspapers owned by Rupert Murdoch had illegally hacked into the mobile phones of numerous celebrities, royalty and even crime victims to get these stories. But even if criminal means are not used, the routine intrusions into the private life of film stars, footballers and other celebrities – not to mention ordinary people who get caught up in a particular story – are not justified by the public interest. In the wake of the Murdoch hacking revelations, a line of celebrities, from the author J K Rowling to the film star Hugh Grant, but also the parents of murdered or missing children, queued up to tell public inquiries how their private lives had been grossly intruded upon by rapacious media. And Greg Miskiw, the former news editor of the Murdoch-owned tabloid News of the World, is reported to have told one of his reporters, “That is what we do; we go out and destroy people’s lives.” We say more about this under the (closely related) next principle, on defending your reputation [P9].

When those affected hire lawyers to block publication, citing their right to privacy, tabloid editors protest that these are attempts to strangle free speech. Sometimes this is true: rich, powerful people (and corporations) want to cover up facts that the public should know. Often it is humbug: what the editors call “the public interest” is nothing more than “what interests the public”. In Europe, the courts then have to make individual judgments, balancing the free speech rights enshrined in Article 10 of the European Convention on Human Rights against the privacy rights guaranteed by Article 8.

But why should addressing this problem be left to the courts, after the event? So long as we buy those newspapers or visit those scandal-mongering websites, we encourage their misbehaviour. If we disapprove in principle of such revelations, but read them with avid interest, we are hypocrites too. Michael Kinsley summarises his experience as editor of the online magazine Slate, where he received protesting emails about salacious detail on Bill Clinton’s sexual encounters with Monica Lewinsky: “Their emails say no no, but their mouse clicks say yes yes.”

So in this area of free speech, too, what happens does not just depend on what governments, courts or regulators do. It also depends on what we do. We can refuse to buy those papers, visit those websites and feed intrusive social media. We can tighten our privacy settings, and demand better ones. Even in a world transformed and opened up by new technologies of communication, a degree of privacy remains not only an important limit on but also a condition for freedom of expression.

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Published on: January 28, 2012 | 11 Comments

Comments (11)

Automated machine translations are provided by Google Translate. They should give you a rough idea of what the contributor has said, but cannot be relied on to give an accurate, nuanced translation. Please read them with this in mind.

  1. Publicspaceshult says:

    I don’t necessarily agree with this statement as we don’t currently have an accurate way of measuring what’s in the public interest. As a result people believe they are interested in the topics which are in the media, but these might not have been the interests they would have formed left to their own devices.

  2. Publicspaceshult says:

    The public interest is far too fickle to consider encroachment onto privacy tolerable. Allowing it to be cherry-picked allows far too much room for abuse.

  3. Publicspaceshult says:

    People shouldn’t be entitled to a private life if it means that they can use their privacy to cause harm to other people. What if someone used their privacy to build a terrorist following?

  4. marcel says:

    The second part of the principle 8 is too vague to be accepted as such, without a precise definition of ‘public interest’. This is the reason why I would maintain only the first part of the principle, namely: ‘we are entitled to our private life’, as one of the fundamental human rights enshrined by the European Convention of Human Rights and the ECHR’s judgments delivered according to this.
    Any infringement of this right should be justified only either on the legal grounds concerning criminal investigations (including those relating to terrorism and more), and/or the public interest relating to public servants’ activities (public activities and private activities which could make these individuals vulnerably as regards their public status).

  5. Alex Helling says:

    This principle is always going to be a difficult one to juggle. I agree that ‘public interest’ is very vague and could be used to justify either immense amounts of press intrusion or very little depending on where the bar is placed. But as a free speech principle enshrining the right to privacy without some way around it in the statement would seem to be doing the opposite of what much of the project is promoting. A principle of privacy would present a block on freedom of speech rather than an attempt to break down such barriers as most of the other principles do. Indeed I am slightly surprised that the principle was not more radical the other way towards there not being much right to privacy. Principle 8 seems to turn what might otherwise have been quite a radical manifesto for free speech into a much more status quo idea.

  6. marcel says:

    I couldn’t agree more with the opinion concerning the importance of freedom of speech, but freedom of speech doesn’t mean public interest, at least not anytime. The right of private life, the public interest and freedom of speech are three legal concepts which are interconnected but different, and obviously, should not exclude each other. Moreover any right involves a correlative duty. Freedom of speech is not incompatible with the right to privacy as long as it is used without breaching the other’s rights, as they are ruled by the relevant statutes.

  7. says:

    Privacy sounds like a nice thing. If I could have a right to privacy without this interfering with free speech, then I’d be tempted. But what are we supposed to do? If I do tell someone an intimate secret, can I really be given a right to force them never to reveal this information? That sounds an awful lot like limiting free speech.

    Attempts to enforce a right to privacy can easily interfere with free speech – and free speech is more important than privacy. It shouldn’t be a question of trying to ‘balance’ a ‘right to privacy’ against ‘the public interest.’ It is not in the public interest to compromise on free speech without an extraordinarily good reason – and preventing people being embarrassed is not an extraordinarily good reason for limiting free speech. Are we really going to argue – without any trace of irony – that, in order to protect free speech, we have to force people to keep quiet about things that might embarrass other people? Very often, this embarrassment results from people being two-faced and deceitful. They want to present one image of themselves to certain people whilst the truth lies elsewhere. Should we compromise free speech in order to protect liars from being discovered?

    I am also concerned to challenge the central argument that privacy is a condition of free speech – as expressed in the top paragraph. Providing we don’t have a police state – which obviously wouldn’t have free speech anyway – the argument about a lack of privacy preventing free speech doesn’t hold water. It is true that, even without a police state, most people will still limit what they say if they think their words will not remain private. That, however, is their choice. They are not being forced to keep quiet. Their right to free speech has not been taken away. They are choosing not to share their views – usually because it doesn’t suit them for certain other people to know the truth about what they think.

    There are legitimate ways in which we can seek to protect our rights to privacy. Mainly, however, these should focus on restricting some of the more intrusive methods that people might use to gain information about us rather than on restricting how they can disseminate information they have obtained legitimately. Limiting free speech in order to protect people’s privacy, however, is another matter.

    We shouldn’t be compromising our free speech principles. When people have concerns about such things as privacy, instead of pandering to any demands they might have that free speech should be limited, we should stand by our principles and argue our case that, however much we might enjoy our privacy, free speech is far, far more important.

    • Joao says:

      The problem is not so much that you can’t force someone to reveal your intimate secret, is the fact that it can be revealed potentially to four billion people and that it will stay there forever. You can change jobs, city, country and it will stay there. And this can have horrible consequences. That’s the main issue. The public space changes when it becomes a virtual (online) public space.

      The same goes for the concept of free speech. If you apply self-censorship (which in some cases could just be called “common sense”), then you’re restraining your freedom of speech, because you know that the perpetual and open nature of the internet can have consequences in the future. I’m all for making people responsible for their comments, but I also know that people don’t really understand how the internet works and that often they may make comments for a specific group in a specific situation which can then spilled by others and can become potentially harmful. I’m talking about hate speech as much as political, religious or any other views. I don’t agree with the balance metaphor either, but I do think that these two fundamental rights are equally important.

  8. morninghaze says:

    Eigentlich sind die Bedingungen bei der FB-Anwendung nach amerikanischem Recht gestellt. Warum soll ich als Bürger eines europäischen Staates bei der Nutzung von FB nach US Recht behandelt werden. Hier übernehmen die social media die gleiche Vorgehensweise wie google vor einigen Jahren.

  9. Joao says:

    First of all, congratulations for the project. It’s quite interesting.

    I agree with most of the comments above. The definition of public interest online is a very shady business, in particular because the perpetual memory of the internet can, in my view, constrain the usual definitions of the concept, mostly because anything can become of public interest at any time. You can go back years and years on end and find anything related to someone who’s suddently under the spotlight and anything that is unrelated, but still damaging comes up again, even if not in the public’s interest.

    There’s a two-fold approach to this, in my view: there’s a need for an education for privacy, in which people are taught how to behave online (and I’m not just referring to social media). We focus a lot on companies privacy policies, but we seldom talk about how the people use the internet, something which, I am sorry to say, the majority seems to know very little about. Then there’s also a need for a regulated approach to privacy, which applies to companies, but also individuals, by which one can enforce not a right to be forgotten, which is technically unfeasible so far, but a right not to be found (see for instance the recent EU Court of Justice referral regarding Google). As Prof. Schoenberg wrote in his book (“Delete”), online abstinence is not a good approach anymore, but neither is online binging, especially involving personal data.

    Finally, I strongly feel that, as difficult as it may be, a limit should be set as to how the internet – and internet-linked technologies – should enter our daily lives. This of course involves a serious reflexion on big data, profiling, data retention and so on and so forth.

  10. Malcolm Bush says:

    Once again we are given the opportunity to read a wonderful, enlightening, thought provoking and educating article; and all the subsequent comments. This subject has been of some interest to me for some time. Please forgive me if my comments seem more than a little incredulous, and perhaps somewhat crazy. I do agree with all that is conveyed within the article. This seems to be an immensely complex subject and I am far form being anything of a writer; with no education, as you have probably gathered by now. We live in changing times, technology is advancing and making it easier to collect information of all types and also to distribute information. All this information technology has multiple uses and can be mixed with other ingredients of generic day to day life to make many byproducts. If we use Facebook we willingly give some personal details out towards strangers and whoever. We also enter a world in which we are well liked and very popular because it is the nature of Facebook to bring us smiling loyal friends and remove any who grumble or disagree with our comments. This does not require any direct action by Facebook staff or anyone else; it’s a natural process. It appears to me there are many aspects of if issue that are completely, or almost unknown to the public; but known to the rare breed of specialists. The poorly educated are helped greatly by modern information technology; but the whole mass of the general public are open to manipulation on a massive scale. If we move form one web site to another and do the same with news outlets we can find on the popular “high hit rate” sites radicalization on a large scale, people with angry opinion but no, or very little knowledge of what their anger is about. I am not very good explaining these things; but I really do believe we must beware. Terrorism and pedophiles are subjects that are genuinely profoundly disturbing; but are we being whipped into hysteria to make us proud to give up our privacy to those with surreptitious agendas. Our TV pumps out lots of propaganda which adds to the mix and sometimes encourages the giving up of more privacy. We also have a problem that all those ‘little guys’ who don’t have any real fire power and capacity to do violence; will be dealt with severely; others , state actors, private contractors and so forth are OK and will get away with anything. Much of the data collecting paraphernalia is owned and used by multiple organisations, business, civil public sector, military, intelligence gathering and so on, one way or another. We sometimes read sensational stories that make “conspiracy theories” of secret Intelligence gathering; when it’s just some day to day mundane operation. The really important issue here is should we be happy for more of our personal information to be stored, and more of our privacy given up. In my limited, but considered opinion definitely not, we cannot trust those in power, if we consider terrorism there are scandals of torture, lies and massive fraud. Look deeper and we find much more of the same going back many years.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.