07Privacy

We must be able to protect our privacy and to counter slurs on our reputations, but not prevent scrutiny that is in the public interest.

What is privacy? What is the public interest?

Our seventh 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 Google.com 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 other part of this principle on defending your reputation.

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.


Comments (17)

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. If religion were just a matter of recognizing a particular prophet and performing particular private rituals then this formulation would be pretty good.

    One man is a Jew and recognizes the prophet Moses. He prays to a God whom he takes to be the only God.

    A Christian is much the same except that he replaces Moses with Jesus.

    A Muslim replaces Jesus with Mahommed.

    And a Hindu recognizes thousands of Gods.

    But it’s not at all like that; it’s not at all private.

    A little while ago young Muslim men frequented the beaches in southern Sydney and approached the girls in their swimming costumes and told them they were “sluts” and “whores.” When the lifesavers told them to cool it they bashed the lifesavers. The lifesavers! Bashing lifesavers is more aggressive towards the society-as-a-whole than defecating on the tomb of the unknown soldier.

    And eventually there were huge battles between groups of Muslim and non-Muslim young men.

    It is not just a matter of private prayer. It is a matter of what behaviour and practices are allowed in public. It is a matter of raising money to support the ISIS in Syria and Iraq.

    It is a matter of establishing schools to segregate your kids, and in other ways brainwashing and them.

    And it is a matter of killing people who write things about your prophet that hurt your feelings. Ask the writers and film makers who can’t go to the shops without an armed guard.

    Since certain religions have embraced modernity and since others (one at least) are determinedly medieval, I don’t think that we can “rub along.” Sooner or later the determinedly medieval lot will do enough things like flying airplanes into the World Trade Centre that a civil war will break out. There will be people like Neville Chamberlain who will pompously announce “peace in our time,” but there can be no peace.

  2. I agree with imos. It is freedom that is at issue here, not respect. Parsing respect into two different forms, “recognition respect” and “appraisal respect” is leads away from a full understanding what is actually at stake.

    Misplaced respect can be a very dangerous thing. As an extreme example, say I am walking down the street with a friend, and we happen upon someone being beaten. At my urging, we jump to his aid, and pull his attacker away, and restrain the attacker. Another bystander calls the police. Meanwhile, the person who was being attacked, pulls a gun from his pocket, and shoots both his attacker, and my friend, wounding the attacker, and killing my friend. He also fires a shot at me, but it misses. Then he gets up and runs away.

    Before the police arrive the “attacker” who I no longer need to restrain, because he is wounded, says to me with a world weary sadness, that the other guy had threatened to rob him, and he was in the process of defending himself, when me and my friend showed up and intervened, on the would be robbers behalf.

    Who exactly deserves respect in this case? Me? My friend? No. Only the guy laying on the ground with the bullet in him. And who is free? Me? No, I’m going to be talking to the police for a while, and living with the guilt of my friend’s death for the rest of my life. The misunderstood “attacker”? No. He’s going to the hospital, and will be paralyzed for the rest of his days, because the bullet nicked his spinal cord. My dead friend? Nope, not really. Although some would say that death is a kind of freedom, I suppose.
    The only free person among us is the robber, who by the way is never caught for this crime. In the real world, there is no such thing as “recognition respect” In this usage of the word respect, there are two possible meanings: “Esteem for or a sense of the worth or excellence of a person” or “deference to a right, privilege, privileged position, or someone or something considered to have certain rights or privileges”.

    With respect to “respecting the believer, but not the belief, one needs to be careful. Respect need not be granted to everyone. It must be earned. And freedom is a gift, granted to us only by our circumstances. It’s nice to think that one day the world may be a fairer, better place to live. But each of us must decide how much we are willing to do to try and make it so, and be prepared to get sand kicked in your face from time to time, because this world is not perfect, and it never will be.

    Oh, and although I have only today discovered this site, I love it and (almost) everything it stands for! Snap decision? Yes, but that is my style.

  3. No, no, no!

    It’s a fundamental part of my freedom that I shouldn’t have to respect anyone. Force me to respect anyone and you’ve taken my freedom away.

    It may be true that many of us who campaign for free speech do indeed respect many of the people whose beliefs and opinions we disagree with – but we should not be forced to do so. If free speech is to mean anything substantial, then it absolutely should allow us the right to be disrespectful towards the believer as well as towards their beliefs. There is no balancing to be done – this is a point of principle, not something to be bargained away in our quest to be allowed the right to criticise people’s beliefs.

    Tempting as it might be to appease the opponents of free speech by reassuring them that our questioning of their beliefs does not mean we are being disrespectful to them as people, we should never give ground on the principle that we should have the fundamental right to decide for ourselves who we respect and who we do not respect.

    The only way we need to respect the believer is in regard to respecting their freedoms, but that’s more about adhering to the principles of freedom rather than about respecting them as a person.

    Hopefully, most people will choose to be respectful towards the believer – but this should remain entirely an issue of individual choice. Nobody should have an automatic right to our respect – for to enforce such a right would be to take freedom away from everyone else.

    • Hi imos

      thanks for this thoughtful comment. Might your problem with the word ‘respect’ be the definition? Because if we take ‘respect’ at its most basic – accepting that others are different and not wish to harm them – then I cannot see how we can live in a peaceful society without respect. If we are talking about ‘respect’ as a feeling of appraisal, then I absolutely agree with you.

      What are your thoughts on this? If we do not show respect to everyone, how can we uphold the human right that everyone’s dignity is untouchable? I look forward to reading your reply.

      • Hi JB,

        Thanks for replying to my comment!

        I think we should respect other people in the sense that we allow them to have their freedoms – but, as I say, that’s more about respecting a principle than about respecting a person. So long as you allow people their freedoms, then why shouldn’t we be able to live in a peaceful society? The minute someone uses violence, they are taking away someone else’s freedoms, but we can maintain our freedoms without any logical requirement to respect each other.

        As for people’s dignity, I don’t recognise any fundamental human right to maintain one’s dignity. People lose their dignity for all sorts of reasons – usually as a result of their own unprincipled behaviour. If you stick to decent principles, then there’s no reason why your dignity should be harmed by what anybody else does or says.

  4. I agree with the idea of this principle in the sense that every single individual has the right to believe whatever he or she feels like. But I also think that just by promoting this ideal the world is not going to change positively. I believe it is necessary to approach today’s ignorance by fighting it with education, respect, and tolerance. If these methods are used to reinforce the principle I believe attempts to impose ones beliefs or ideologies into others will be reduced, and a more harmonious lifestyle will be achieved. Moreover, I do find some discrepancies within this principle. Just like other individuals have posted and commented, what if the ideology, religion, or belief practiced by an individual or group affects or threatens others? It is stated within the explanation of the principle that we should accept this “one belief” (the principle) above others in other to coexist freely and fight for the higher good. The higher good being that “everyone should be free to choose how to live their own lives, so long as it does not prevent others doing the same.” Well, this sounds kind of comforting, but there is so much to consider. Who or which authorities will provide the guidelines and enforce them? And what type of guidelines? Since something might be insulting for Christians but maybe not for Scientologists. And is Scientology considered a religion? If it is, which ones are not, and how are people following these other religions or ideologies supposed to contribute or express themselves?

  5. This belief is very important because predominant ideas in society can change over time, and we must allow voices to be heard, even if they dissent against commonly held ideals.

  6. I believe that every single person is entitled to their own religious and spiritual belief and others should respect them as believers as well as the content on their belief – as long as it doesn’t cause any harm to those around them.

  7. respecting all religion will result to a better and more tolerant world. I strongly agree with the statement

  8. I think this concept is a nice idea however some theories are insulting and counter productive. If for example, one attempts to justify slavery, the holocaust, discrimination or something of the sort, should the believer be respected?

  9. I don’t know if it is actually possible to commit to this principle. For what do we mean by “respect”? I think the article focuses too much on religion and doesn’t assess other “taboos” related to politics and that are part of collective memory. Is it possible to respect person that believes that Nazism is good and that it should be implemented? What do we think of those people? In many countries you can be charged for saying a statement like that; or among other consequences, people will decide not to speak to that person or to alienate him/her from society. In both cases, there are incentives for an individual not to speak his mind, because his thoughts are not against a specific belief but to other humans. Could we respect a person who thinks like this? Could we trust him or her? Could we be friends with a person that thinks that a race is better than another?
    Humanity witnessed how thoughts like these became politics in the XX century and the lessons were hard to learn. Does allowing an individual to revisit these ideologies represent a risk, that at some point that that horrendous chapter in history can happen again?

  10. Freiheit, und somit auch das Recht zur freien Rede, ist nur moeglich, wenn die Freiheit eines jeden Individuums nur so weit geht, dass sie niemals die Freiheit eines anderen Individuums einschraenkt. Somit existiert keine grenzenlose Freiheit. Fanatische Redner, die dazu aufhetzen, die Freiheit anderer einzuschraenken, sollten keine Redefreiheit geniessen. In diesem Falle respektiere ich weder ‘his content of belief’ noch den ‘believer’.

  11. I think most of the people don’t have the knowledge about other religions and have therefor a hard time to respect religions. Today this principle should be applied world wide as we have more knowledge about the world, its different kinds of people, and their religions. As already mentioned in other comment the past have shown it does not work this way, but let us hope the future will be different.

    • I agree with what Sara is saying. Religion is a difficult topic to discuss. However, it should be the case that when people voice their opinion others must respect it however this does not necessarily mean that they agree!

  12. In my opinion this is a principle that should by applied World wide. Everyone has opinions and everyone should be entitled to one. This does however not mean that everyone should agree but at least people will have the opportunity to express their thoughts. It is all about respecting one another. However, unfortunately as the past has proven this is not always the case and implementing this principle will be one of the most difficult due to factors such as religion.

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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. www.freespeechdebate.ox.ac.uk

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