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What is Privacy? A Legal Expert Tackles the Issue of Our Era

When Edward Snowden revealed the existence of a widespread spying programme by the NSA, the public's response to the news of the privacy incursion was intriguingly divided. Some called the whistleblower a treasonous spy; others dubbed him a privacy crusader.

When Edward Snowden revealed the existence of a widespread spying programme by the NSA, the public's response to the news of the privacy incursion was intriguingly divided. Some called the whistleblower a treasonous spy; others dubbed him a privacy crusader.

And yet another camp -- clearly acclimatised to the über-transparency of Facebook culture -- apathetically shrugged its shoulders, 'What is privacy?'

The aforementioned question is infused with a much-needed dosage of urgency in Privacy and Media Freedom (Oxford University Press 2013). In it, author Raymond Wacks, Emeritus Professor of Law and Legal Theory at the University of Hong Kong, tackles the feverishly au-courant subject of privacy. He approaches the topic from a legal, sociological and historical perspective, focusing on the laws in Britain, with some discussion of US privacy law as well.

The book comfortably pivots between academic legalese, replete with contrasted court cases and judicial and obiter dicta -- to the sort of thoughtful, elegant prose and socially contextual writing one might find in the New Yorker.

The author digs into the annals of privacy law (which he describes as "disappointingly nebulous"). He exposes its roots from nation statehood and 19th century liberalism, to the impactful Harvard Law Review article that so broadened privacy's scope and definition that it is apparently largely responsible for the law's obscurity and ambiguity today.

Reform committees (and even Lord Justice Leveson himself) have been disinclined to recommend specific domestic privacy legislation, instead preferring a case-by-case balancing of the European Convention on Human Rights (ECHR)'s 'freedom of expression' (Article 10) and 'right to respect for private and family life' (Article 8)

The latter, emphasises the author, does not "protect 'privacy' stricto sensu. In fact, if it protects 'privacy' at all, it protects the right to 'respect' for privacy". In contrast with the UK, France, for instance, possesses strong and clear privacy laws embedded in its constitution and civil code; consequently this often invalidates the need for libel lawsuits.

Yet, it is only since 1998, that the Human Rights Act entrenched the Convention into domestic UK law, paving the way for protection of privacy incursions -- largely sought by celebrities (who, according to Sweet & Maxwell, have increasingly begun to engage privacy law, rather than defamation actions).

The most high-profile and influential of these cases: Naomi Campbell's lawsuit against Mirror Group News for publishing photos of her leaving drug rehab. This landmark House of Lords win for the supermodel, writes Wacks, marked the tectonic shift in Britain's privacy law with its creation of a new civil wrong of 'misuse of private information'.

Still, Wacks argues throughout that privacy law is in dire need of precise legal definition and reform. The author methodically outlines the context for its increasing relevance in protecting us from intrusions in our quotidian lives -- from frighteningly invasive tech like RFID to internet data mining -- explaining that Britain is home to over 4 million CCTV cameras, and the world's largest DNA database.

However, when it comes to the publishing of private information, the book chiefly focuses on media in the 'legacy' sense and the classic balancing act between freedom of expression and respect for right to privacy (whose imbalance in favour of the former was brought to light in the News of the World phone hacking scandal and concomitant Leveson recommendations).

Wacks discusses the now-defunct NOTW whose publisher defended a privacy lawsuit filed by former Formula One governing body president Max Mosley after the paper released racy footage of him engaged in sexual activities with prostitutes (allegedly involved in Nazi role-play).

The case was brought to the European Court of Human Rights which rejected the claim that Mosley's Article 8 rights had been violated when NOTW neglected to give him prior notification of the lurid revelations. Requiring such advance apprising by the press would have had a 'chilling effect' on free speech.

In a similar vein, the author anticipates that his call for "lucid [privacy] legislation" will be met with protestations that this would muzzle free speech. Not the least of which, the English common law seems to favour gradual, flexible, case-by-case implementation (allowing for incorporation of shifting social mores) to the rigidity of heavy-handed legislation.

Wacks does not however favour allowing society to run amok through the minefield of privacy (exploiting "titillating gossip" in its wake) and haphazardly shaping laws. Instead, the law should have a hand in shaping what society can expect in terms of privacy. Our much-cherished free society values, although "sustained by social norms... occasionally require the sustenance and defence of the law", he says.

The author builds a strong case for such specificity throughout the book. He posits that if the courts focus more on the nature of the private information in question (not just the circumstances of its disclosure) that this would establish -- to publisher and public -- a clear boundary between privacy and free speech. The right to control one's image (and the audience to which it is targeted) too seem wholly fair.

It is ultimately, he writes, not so much about curtailing media power but about arming potential victims of intrusions with clear and fair remedies.

Wacks also explains that a piece of information on the Internet, on its own (for example a profession or address) might not impinge on one's privacy, but when combined with other info, can give rise to serious concerns.

He broaches the surface of such contentious online terrain: "The facility and velocity with which bloggers, tweeters, and other online commentators spread the word (benignly or otherwise) frustrates the law's efforts to safeguard personal information."

He acknowledges the equally culpable role played by the new unofficial media -- bloggers, tweeters and other online non-professionals (whose actions often elude regulation by authorities like the PCC, Oxfam and BBC).

Although an enticing nugget, the new user-generated media isn't the central focus of the book -- which goes more in-depth in regards to traditional media. Admittedly, it would have been fascinating to watch the learned author expertly dissect the more complex, thorny, fast-changing new media issues in more detail. Nevertheless, his informal proposal in the book's appendix includes a defence for website operators (not unlike the one in the new Defamation Act 2013).

It is clear that Privacy and Media Freedom is not targeting a mainstream audience, nor is Raymond Wacks positioning himself as the legal world's Malcolm Gladwell or David Brooks.

For the lay person, the book can seem dense at times, but with its engaging observations, and legal ammunition, it's well worth the wade in. One needn't be involved in legal work or study to benefit from the read.

Privacy, as we have seen from the Snowden revelations, is perhaps the greatest and potentially fastest-depreciating issue of our times. "Indeed, the slide towards electronic supervision may fundamentally modify our relationships and our very identity," writes Wacks.

And to embrace unquestionably the blasé transparency of our data-rich world will have jarring future reverberations for our globalised, digitally borderless society.

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