Developing a Unified
Concept of Privacy Law
My
position statement for Seminar 1 adopted the standpoint of the (common) law in
England and Wales on the right to privacy, and examined how this interplays
with sousveillant practices. We discussed in that seminar how the case law on privacy,
especially with regards to the relatively new tort of ‘misuse of private
information’, has largely been a question of how the rich and famous can
protect details of their private lives from unwanted press interference. This
is highlighted once again by the recent spate of celebrity injunctions. Yet,
this series of seminars has illustrated the different disciplinary
understandings of privacy, and how even within the law, different spheres of
law protect quite distinct interests under the umbrella of ‘privacy’, with
seemingly little interplay between them. As a result, clear gaps in legal
protection have arisen through our discussions over the course of the series,
including:
Data Protection Law: A number of
speakers in Seminar 5, in particular, discussed how information gathered from
smart technology falls outside the remit of traditional ‘data’ protected under
data protection legislation. Following the Schrems
judgment, a new draft ‘Privacy Shield’ has been developed for the transfer
of information between the EU and US, but a leaked document from the Article 29
Working Party revealed continued concerns about whether the agreement
guaranteed the fundamental protections required to comply with EU standards
Human Rights Law: Speakers across
several seminars have analysed the rights of individuals vs. the interests of
state security. However, we can see from the Snowdon leaks and related
revelations that surveillance stretches far beyond traditional notions of surveillance, and
encompasses mass collection of data, including (if the new Investigatory Powers
Bill is passed) bulk interception and acquisition of communications data. The
European Court of Human Rights has clearly stated that the interception of
communications must be specifically targeted, limited in duration, and that
there must be a reasonable
suspicion that the person targeted has committed or is about to commit a crime.
These principles are not (yet?) incorporated into the new Bill.
Private/Tort Law: This relates
specifically to the type of information to which a ‘reasonable expectation of
privacy’ would attach, and thus generally would not encompass, for example,
such information as an individual’s location – this again raises issues on the interplay
between new technology and legal standards.
The confusion about what we mean when we talk
about privacy, even from one disciplinary (legal) perspective, highlights one
of the main challenges that we face in attempting to communicate some of this
project’s key findings and recommendations to a broader (non-specialist)
audience. The report
by DATA-PSST and DCSS showed that the public (at least the population of
under-60s) seemed to link the notion of privacy as most closely relating to
state surveillance of communications data, as opposed to their right to privacy
vis-à-vis fellow citizens, in this era of ‘forced transparency’.
No comments:
Post a Comment