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Monday, 23 May 2011

Privacy and free speech

Write in support of privacy, and the free speech lobby get agitated.  Speak out against court injunctions and become hailed as a champion of sex, scandal and tittle-tattle.

Having been numerously represented, I'm considering my legal options!

Yes, our sex and celebrity obsession concerns me, but the mechanism our courts seem to be using to induce change concerns me more.

In UK law we don't have an inalienable right to free speech any more than unlimited rights and freedoms in the physical world.  In both the physical and information domains; some actions are illegal, some are antisocial and some are legal but nevertheless immoral or unethical.

Being free to express opinions is an essential part of democracy, but where are the boundaries between free speech and bullying or harassment?

The risk and harm equations for speech and information are likely to look very different to behaviour in the physical world.

Privacy...

I don't think society understands enough about the concept of privacy in the information age to be creating privacy law - especially via the judiciary, outside of parliamentary scrutiny.

Privacy is a social problem that needs far more than a legal "solution", especially given (i) any statutory privacy law could well have unintended consequences, namely a pit for influential people to hide from accountability; and (ii) a scalable and robust system of enforcement across all publication channels will create a mechanism with far more capability for harm than good.

Two prescient questions on privacy:
  1. How do we define what is private, and what isn't
  2. Is society ready and prepared to adopt a change in attitude to celebrity sex and scandal, because ultimately, in a democracy, what interests the people does become public interest, despite what legal scholars ague, because a democracy respects the public will.  (Without adding the problems and unintended consequences associated with enforcement).
... Defined
 
Legal attempts to define privacy are in my view primitive and unhelpful as they tend to focus on static descriptions of the subject matter that should remain private, rather than consider the wider question of the setting and manner of intrusion.

Is sexual information always private?
 
The concept of privacy is the ability to find spaces to act free from observation.  What I do in those spaces is de-facto up to me.  The setting and manner I choose to undertake any activity should determine whether or not I'm afforded a reasonable expectation of privacy.

Attempting to classify activities into what is and what isn't a private matter is in my opinion is a short-sighted over-simplification.

If I want to sit in a locked room and read a book on knitting, then the fact I like knitting is a private matter.  The law should protect my privacy because I chose to carry out my activity in a private room.

If anyone then published information uncovered i.e. by intrusive surveillance (any surveillance would be de facto intrusive) then I would expect to see the perpetrators of the intrusion punished.

It doesn't matter if the publication of the information is seen as damaging to me by a court or third party.  The damage is my loss of privacy from the intrusion into my private space.

Whether or not the information once uncovered should be withheld by injunction is a moot point for two reasons.

Firstly, injunctions are not practically enforceable (and, found in Norway, not legally enforceable).  They're not scalable for the mass population, yet despite the recent hype, privacy is important to more than just celebrities. 

Secondly, the greater offence is my loss of privacy.  The information that gets out is a secondary concern to me; secondary to the fact that someone is undertaking surveillance on me in a private room.
  
Reasonable expectations

Privacy should be defined in terms of private spaces and methods of intrusion, not sex and sexuality.  For me the really big question occurs when a second, invited, party is involved in the locked room.

The question then becomes one of trust rather than privacy, and any question over whether invited parties should be bound by law to keep e.g. details of a sexual nature secret is riddled with pitfalls.

What is clear however is any secret surveillance undertaken by the invited party should be no more legal than any other eavesdropper.  The reason I draw this distinction is because of clarity and expectation.

We tailor our behaviour according to setting.  We assess the risk of being observed based on what we know, and our expectations (and granted, expectations are not static - they shift over time, especially as technology develops, e.g. CCTV etc).

We don't expect lovers to have installed surveillance, however we should always expect they might gossip.

@JamesFirth

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