12 December 2012

Talking About Privacy

Three noteworthy speeches ...

Lord Neuberger on privacy [PDF] -
Privacy is a subject which seems to be forever topical. It excites (in both senses of the word) public discussion, while demanding considered reflection. And it raises many difficult and, often, controversial questions. Is privacy a value which society should protect? If so, to what extent? Is protection of privacy a fetter on freedom of expression? If so, can and should a balance be struck between them? And if so, what type of balance? Should, for instance, freedom of expression always trump privacy, as it is sometimes suggested is the position in the United States? A suggestion, I may add, which ignores a variety of US statutes and constitutional provisions which protect certain aspects of privacy to varying degrees, subject to the First Amendment protection of freedom of speech and expression.
And is privacy a value which is, on deeper analysis, not inimical to or a fetter on freedom of expression: is it actually a necessary and vital aspect of freedom of expression? Or should we maintain the straightforward and generally held view that the two are wholly distinct, indeed often in conflict?
These are all difficult questions. They go to the heart of issues concerning the very nature of society. It was, of course, to a large degree concerns about invasions of privacy which underpinned the decision to set up Lord Justice Leveson’s Inquiry, which issues its report tomorrow, and will wholly drown the reverberations of anything I say this evening which is stupid or controversial.
Questions concerning privacy have become all the more pertinent over the last twenty years for three reasons, which are no doubt not entirely discrete from each other. The first is legal; the second is social; the third is technological.
The legal reason derives from the introduction of the Human Rights Act 1998 (“the HRA”), which incorporated the European Convention, and in particular Articles 8 and 10, into British law. For the first time, privacy, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute, and, it should be added, for the first time, freedom of expression, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute. The social reason can be traced to changes which started in the 1960s, and became embedded by the 1990s. It was in the 1960s when the largely self-imposed restraints on the press and the rest of the media started to loosen, when the previously strong cohesion of the establishment started to break up, and when what Tony Blair called “respect” started to disappear. The Profumo Affair, and Lord Denning’s subsequent report on it, is generally agreed to have been the watershed, although there is room for argument whether it was a cause of change or an early symptom of this change. One MP at the time recalled that, during the investigation, Lord Denning “could not move an inch without being followed by the television cameras”, and that his report was published “in an atmosphere of salesmanship and ballyhoo such as never previously pervaded the environs of Her Majesty's Stationery Office.” The Profumo Affair may have helped to instil in the media the confidence to challenge the establishment.
It was also in the 1960s that the seeds of the cult of celebrity (people who were famous simply for being famous – or even for not being famous) were sown, when what was previously unsayable and undoable in public started to be said and done on television and in the press, and when activities which were thought to be shameful, immoral or illegal started to be accepted. Legislation from the time highlights the increased acceptance of previously criminal activities: the Suicide Act 1961, the Abortion Act 1967, and the Sexual Offences Act 1967. At the same time, evolving social norms, as portrayed on television and in the press, were partly responsible for other legislation, such as the Race Relations Act 1965, the Equal Pay Act 1970, and the Sex Discrimination Act 1975. These rapid social changes may also have increased the confidence of the media, because they demonstrated how readily people react to what they heard and saw.
The technological reason stems, of course, from the exponential growth of electronic communication. In particular, there is the internet, which has spawned effortless, inexpensive and instant mass communication in forms such as emailing, social networking, blogging, and tweeting. Not so long ago, publication was effected via books, journals, magazines, newspapers, radio and TV. Now anyone, at no more than a mouse click, can blog their thoughts, post their photos and upload videos of themselves, or of anyone else it seems, onto the internet and thereby broadcast them to the world. Cyberspace has created a global village, of which we are all inhabitants, whether we want it or not. And another vital part of that global cyber-village is mobile phones, which mean that it is very easy to contact us, to trace us, to photograph us, and to record us, and, it appears, to intercept our messages.
The development of this global cyber-village brings questions of privacy and freedom of speech into sharp focus. We have, I think, only just started to appreciate the fundamental effect of this technological development on our perception of the right to privacy and to freedom of expression. The pace of development of IT seems to be ever accelerating, and this adds to the problem, as it means that the way in which individuals view their rights to privacy, and to freedom of expression, is in turn changing. We are, as they say in America, always playing catch-up.
Lord Leveson on the net and media [PDF] -
So we have been here before. The birth of a new technology has seemingly brought an end to privacy not once, but now twice. The mass media did not however kill it off. No doubt it probably felt for a time that it would, and in fact, had done so. But the shadow of the laws of defamation and, later, and breach of confidence, whether these last were introduced by statute or were developed by the courts, undoubtedly acted as a break on the light of the press. I recognise, of course, that, as yet, Australia has no tort of privacy either at common law or by statute whereas breach of privacy as a tort has developed in the UK most significantly following the incorporation into UK law of the European Convention on Human Rights, and, in particular, Article 8 dealing with private life.
Perhaps more importantly, public opinion shaped the development of ethical standards on the part of the press and not necessarily to desirable outcomes. It may also be reasonable to draw the conclusion that financial interest proved a limit on the extent to which the media was interested in pushing the boundary between free speech and individual privacy. Interest in a story about the US President’s honeymoon may sell a front page and, today, there are many in the public eye who would have a similar effect; consider, for example, the honeymoon of film stars, singers, and footballers. It is doubtful that the same coverage and attention in the honeymoon of two ordinary members of the public who have never been in the public eye would sell as many copies.
Given the historical failure to develop limitations on incursions into privacy by the media, it might reasonably be said that it is difficult to assume that any such limitations might evolve in so far as the internet is concerned. It is much more plausible to assume that any such limitations will require some type of intervention. Further, it could be said that in recent years the ethical limitations on the conduct at least of certain sections of the press, have weakened. Further, perhaps, due to commercial pressures including the advent of the internet, they have started to push against ethical boundaries and in some instances have pushed too far. At the very least, without treading into dangerous territory, so much is clear from the background to my Inquiry.
But that is not to say that such standards backed up by law enforcement and effective regulation cannot develop and hold. How likely is it that such standards could develop in respect of the internet? This is perhaps where the historical analogy might begin to break down. I am conscious that the Convergence Review here in Australia has recommended that media outlets should be regulated regardless of platform. ....
Given the nature of the internet, the ease and speed with which information can be placed on it and can circulate widely, and the seeming view that it can be placed there with impunity, how likely is it that norms of behaviour will develop as they developed for the media? And how can we hope to police those norms? Or is it the case that, as Eric Schmidt, the former CEO of Google, has it, that only foolish governments would attempt to protect privacy on the internet; foolish because they are unlikely to succeed. Is the protection of privacy in an internet age a possibility or an improbability? Is it even desirable?
Let me take the second of those questions first. If protecting privacy in the internet age is not desirable, there is little reason to attempt to do so. The question then is this: is it desirable to seek to protect privacy?
The first point which I think needs to be remembered in this regard arises from a consideration of freedom of expression. Privacy and freedom of speech and expression are often conceived of as in opposition to each other. My privacy is an infringement of your freedom of expression, and vice versa. What is often not fully appreciated is that privacy is in itself both an aspect of freedom of expression and necessary for freedom of expression to be fully realised. It is an aspect of freedom of expression in that an individual can properly choose not publicly to disclose certain aspects of conduct, views or personality. To that extent, therefore, the right to be silent is itself not only exercising a right to privacy but it is also a form of freedom of expression.
Private expression is still a form of expression. Privacy is also necessary for freedom of public expression as it is often only in private that we can discuss, debate and form our views, beliefs and ideas. In the absence of a private sphere how could we fully develop those ideas? It seems more than arguable therefore that some protection of privacy is desirable if we are to properly protect freedom of public expression. It is a difficult policy question how to do that though, and different countries approach it differently.
It is also arguably desirable for another reason. In many cases, gossip over the internet will be no more and no less harmful than gossip over the garden fence or in a bar. It will be of no great interest to the vast majority of people and, albeit it will be recorded permanently, it will cause no great concern. In other cases this is clearly not the case, as the super-injunction and Newsnight examples show. ....
Assuming then, without deciding the issue, that some degree of privacy protection is desirable how might we do so?
The first point is that we already can do much through an application of the law as it presently stands. Individuals who tweet or use social media platforms are not beyond the reach of the criminal law. Following the riots which took place in England in autumn 2011, two men were prosecuted and convicted of inciting riot via their Facebook pages.
In respect of the Newsnight case, defamation proceedings are, it seems, to be instituted against a number of tweeters. In principle, there is no reason why individuals who tweet in breach of court orders, including privacy injunctions, cannot be traced via their ISPs and rendered subject to legal proceedings. We can, of course, serve injunctions via Twitter and claims by Facebook. The shadow of the law falls on the internet as it does all other aspects of society. Continued consideration will have to be taken to ensure that search engines heed the risk and that techniques are developed to deal with it.
Given that the internet is not entirely out of the law’s reach it is likely in time that, as with the media in the 19th century, it will start to have an effect on individual’s behaviour. It will start to modulate behaviour, and curb its wilder excesses. Time and the proper application of the law will play the same role for the internet as it has done in all other areas of our lives; it will shape our behaviour and help to reinforce social norms. Just as it took time for the wilder excesses of the early penny press to be civilised, it will take time to civilise the internet.
This is not to say that social norms may not change over time. Our view of what is, for instance, private information may change. Our view of privacy may change. I imagine though that individuals will always seek to preserve some degree of privacy and will seek the law’s protection to protect it. The question for us in this century will not simply be how to protect it, but what is it that we seek to protect.
Perhaps most significantly though, while established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed. The rise of the media produced Warren and Brandeis’s famous dissertation on privacy law. The internet may well – and no doubt will – require us to think as creatively as they did.
Only if we do so will we properly understand the role and values which underpin privacy and freedom of expression, the balance to be struck between them and the means to ensure that they are both safeguarded in an internet age. The answers we reach might differ from those we have reached in the past. It is an important discussion. I look forward to today’s contribution to it.
Turnbull MP on the net and media -
If regulations make us safer, healthier, better educated or better informed, there is a tangible benefit. But all too often we can not clearly identify such an outcome from various restrictions.
So with every regulation we need to ask these questions, what is the policy objective the regulation seeks to achieve? Is it worthwhile or relevant? If not, the regulation should go. And that’s why it’s so important to review what I call ‘legacy regulations’, and where these no longer serve a useful purpose, remove them.
And if the objective remains valid, the question for legislators and policy makers, should always be whether the same outcome should be achieved either without formal regulation or with a less burdensome or intrusive law or rule. And that’s really at the crux of the Australian debate over media regulation. We would all like to see the media pay greater attention to getting information right.
We’d all like to find a better way for those who are aggrieved over their treatment in the press to be heard and where appropriate receive redress. And we all understand the need for our laws to reflect the reality of the digital age, not the world as it once was.
But the question is, what is the least costly, most efficient, least intrusive way of doing this? We also have to face a few hard facts about the nature of this discussion. There’s been a decline in confidence around the world in media organisations. The correlation with struggling business models cannot be over looked.
The fact is that the foundations of the news media, the foundations of journalism are under threat in a way that would have seen unbelievable, inconceivable, only a decade ago. ....
I can set out some general principles of where we stand. This is the Coalition’s stance. And the first principle is that we’d prefer self-regulation to government regulation, we recognise that there’s a long history of ACMA, ably chaired by Chris, directly regulating – well enforcing in effect, industry codes over broadcast media, and that’s of long standing.
I question its effectiveness, but I’ve made the point elsewhere that all of ACMA’s efforts to introduce a l higher degree of accuracy and civility with Sydney broadcast radio, doesn’t seem to be very effective. But a Twitter campaign did seem to have a very significant impact on Mr Jones and 2GB. And what that tells me is that the answer to some of the ailments of the press that we complain about is more likely to be more freedom, rather than more regulation.
It was the freedom that the internet, Twitter in particular and Facebook, social media, it was the freedom that that gave to thousands of people who no longer had to go to a mainstream media gatekeeper to get their views amplified or broadcast.
It was that freedom which was able to hold Mr Jones to account, and in a pretty high impact way. We also don’t believe, and this is where we agree with David Cameron. I’m not expressing a view about what should be done in the United Kingdom. I’m not saying what I would say if I was a member of the House of Commons as opposed to the House of Representatives. But in terms of Australia we do not believe self-regulation, that’s to say a Press Council, a revamped Press Council should have a basis in statute.