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’.
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