Wednesday, 28 March 2012

Joint Committee on Privacy and Injunctions report

The House of Lords and House of Commons Joint Committee on Privacy and Injunctions was published yesterday, and I had the chance to read through it today. It's accessible here. This is an interesting report for me because I'm ambiguous about a lot of it. I'm generally working on ways of increasing privacy, but I also support freedom of expression. I think this report does what it sets out to do, but is hamstrung by its limited working brief and some core assumptions. A few observations.

This is not a general committee on privacy. It's a committee on privacy and injunctions. It is focused upon the interaction between privacy and freedom of expression - primarily in terms of publication in the press and the extent to which new forms of social media are a type of publication (a large part of the report is about the future of press regulation). 'Privacy' as I understand it, covers a much greater range of issue than are examined in this report. The problem arises if this report is read as a general, and sufficient account of privacy within the British parliamentary and legal sectors.

Privacy is still an individual value in this report, it's a possession of individuals and something that facilitates individual gains or projects. Whilst there can be a public interest in publication (that might violate privacy) the public interest in a level of social privacy is absent. More broadly, the shadow of liberal political philosophy floats over this report, looking at the balancing of Privacy 'enabling individuals to formulate ideas without public scrutiny' and freedom of expression 'essential for discovering new truths and thus enabling social progress' (p.9). It's very J.S. Mill in this respect.

It actually acknowledges the press as a power block, which sometimes speaks for vested interests and that claims for freedom of expression. However, there's no account of the monopolisation of the press, the ongoing reduction in diversity of different publishers, and the decrease in investigative journalism (except as something that might happen as a consequence of restrictions on newspaper commerciality). This is important because its these public function that legitimate the power that can be exercised through the press (and hence some of its privacy violation in the public interest).

The idea of a continuum of privacy expectations comes up again. This is the idea that some people choose to make a sort of Faustian bargain with the media, 'using' the media for their own gain. This appears to give them a reduced expectation or right to privacy. The report concludes that this doesn't remove all their interest in privacy, but is a relevant factor to be considered in legal proceedings. 

The issue of access to privacy being limited by access to the legal profession (and basically cash) is an important one, and the report suggests that cost free routes for privacy protection should be built into the new press regulation arrangements. However, the report is fairly accepting of the idea that injunctions are not a particular effective or accessible tool for most people.

The part that got the media attention is where the report finds google's argument against censoring search results to prevent injuncted material coming up unconvincing. They suggest that there should be more pressure here, and float the possibility of legislation in this direction. Some of the later discussion around the way that people with an injunction keep having to deal with separate web sites and jurisdictions suggests a model of the Internet as a single entity, which is somewhat flawed.

Generally, this report presents privacy invasions as something that happens rather rapidly, at once, in a significant event and is then made public widely and loudly. As such it is not a great perspective from which to deal with slow, creeping, accumulative forms of privacy invasion such as data-mining and social sorting. This sort of activity doesn't involve the media, and it doesn't make a difference if you're a celebrity of not. There's one single mention of data protection, and no mention of ICO in here. Its again a reflection of the way that the discourse on privacy in the UK is utterly dominated by the conflicts between the media and celebrities. It's skewed away from ordinary privacy concerns and might be best understood as an inter-elite disagreement.

[otherwise, sorry for the absence of posts here recently]

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