Privacy, democracy and freedom of expression

On Privacy (Routledge 2011)

Ch. 2 looks at the ethics of ‘outing’ – or the publication without consent of true personal information. It shows that privacy protections for confidentiality, anonymity and seclusion can enhance, rather than undermine, freedom of expression. It distinguishes democratic from consequentialist and Kantian objections to outing and uses the experience of Oliver Sipple to illustrate these differences. Finally, it distinguishes freedom of expression and freedom of the press, and uses the controversy over the publication of ‘kiss and tell’ stories to illuminate the importance of privacy both to individual freedom and to democratic government.

2014

Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.[Brown, 2009, 13 January]1 Effective protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press. Such concerns with privacy must be taken seriously by anyone who cares about democratic government, and the freedom, equality and wellbeing of individuals. But if it is one thing to say that privacy and freedom of expression cannot always be fully protected, it is another to suppose that protections for the one must ...

Empedocles EJPC, vol. 7, no. 1, 2016

Privacy laws are fundamental to protecting individual freedom and autonomy against the tyranny of the majority, and the social orthodoxy imposed through gossip. In this respect, current media practices are a far greater danger to liberty than restrictions on that expression expressed by privacy law. This paper attempts to explain how the concept of the public interest relates to freedom of expression and privacy and how it mediates between these concepts. The public interest limits the right of privacy, just as the right of privacy limits freedom of expression. What it does as a concept is set out the conditions under which the intrusion of a right to privacy is morally justifiable, and in doing so, it mediates between then rights. However, a media environment which respected this moral argument would look very different to the current standard practice. Key words: privacy, public interest, whistleblowing, freedom of expression, Australia

The meaning of privacy has been frequently disputed in the philosophical and legal literature since Warren and Brandeis first argued for it as a distinct and important personal and social value. Nevertheless, while the meaning of privacy is held to be vague, there is general agreement that Warren and Brandeis were correct in their assessment of its value. Theorists of democracy, on the other hand, have been ambivalent towards the realm of the private. This paper interrogates the intersection between privacy and democracy, questioning the place of privacy as a distinctly democratic value. Introduction My concern in this paper is with the place a right to privacy has in a normative account of democracy. 1 One difficulty with my topic is that both privacy and democracy are highly contested ideas and so I am liable to become entangled in too many matters of definition. I am going to attempt to evade this problem by offering an account of privacy that addresses, I think, the essential worry that advocates of privacy express and one that is not overly controversial. This will not be a full definition of privacy but a partial one suited to my purposes here. With this account in hand I will then show how three alternative views of democracy place different values on privacy. I will end by arguing that only what I call full deliberative democracy requires a right to privacy as a central part of its democratic vision and, consequently, offers a democratic argument for the right to privacy. Although many countries, states, and international organisations have or advocate for a right to privacy, the idea that privacy is valuable is by no means universally accepted. Some have argued that privacy is a dated notion incompatible with modern technology, while others have argued for its limited value. I think it is important at the beginning to distinguish between what privacy amounts to and what its value is. What we value about privacy will change according to how we understand it. However, there is no easy way to say what privacy means, as is evident in the extensive philosophical and legal literature on just this topic, beginning in 1890 with Warren and Brandeis's law journal article called the " Right to Privacy ". There they argued that the right to privacy was a right to be " let alone " (Warren and Brandeis 1890, 205) and free from the invasion of the " sacred precincts of private and domestic life " (Warren and Brandeis 1890, 196). This definition of privacy has some obvious flaws. It is neither a necessary nor a sufficient condition for privacy. It confuses solitude with privacy and, as Judith Thomson notes, I can fail to let you alone by dropping a brick on your head, but in doing so I have not violated your privacy (Thomson 1975, 295). Nevertheless, it does capture one aspect of what privacy means by pointing to the idea of limited or restricted access as an important part of its definition. For the purposes of this paper, however, I will focus on a second feature of privacy that has less to do with encroachment into personal domains and more to do with restrictions on what other people and institutions know about a person. On this account, one is in a state of privacy with respect to a piece of information to the extent that others are not in a cognitive relationship with it. In other words, the fewer people who know some fact about me, the more private that information is. If no-one else knows it, then it is absolutely private.

The Northern Ireland legal quarterly, 2013

Although it has received less coverage than the Leveson Inquiry, the Joint Committee on Privacy and Injunctions, chaired by John Whittingdale MP (the Whittingdale Committee) has also investigated media freedom recently, focusing particularly on the impact of developments in privacy law. Consistent with its quiet performance, it may be said that the Whittingdale Committee’s chief findings are relatively mundane, amounting to little more than a gloss on rubber-stamping common law developments. Whilst this may no doubt disappoint certain sections of the press, it is also disappointing from a legal commentary perspective, particularly for its treatment of public interest. For, although the Whittingdale Committee recognises the problematic nature of identifying this quality with precision, it does remarkably little to address it. Arguably, the imperative for deeper discussion has been provided by a discernible liberal shift in judicial reasoning in recent privacy cases whereby unauthoris...