February 18, 2013

Horse 1442 - On The Right To Privacy

http://www.deakin.edu.au/news/2013/06022013Mirkoprivacy.php
“The right to privacy has blossomed in recent decades, to the point where it has developed into an enforceable legal right in many countries. The existence of a right to privacy has been assumed, but not proven and no one has rigorously analysed whether privacy is desirable, until now.”
“The current legal focus and level of discussion concerning the right to privacy is an illustration of the human propensity to lose perspective,” 
Professor Mirko Bagaric, 6th Feb, 2013

Professor Mirko Bagaric, dean and head of the faculty of law at Deakin University has argued in an essay published in "Future Proofing Australia: The Right Answers For Our Future" that in an age of increased social media, that the right to privacy is either becoming so irrelevant as not to exist or that it never truly existed in the first place.
It is an interesting concept to be sure and I can sort of understand that given that people are prone to publish so many details about themselves, which is the distinct opposite of anonymity, why the Professor would draw such conclusions.
Is it a worthwhile suggestion to make though? By inference, would he be prepared to perform the experiment with his own personal details and effects? I wonder how quickly Mr Bagaric would be to claim his own right to privacy once his itself had been violated. How would he feel if where he lived, his date of birth, tax file number and/or medical records were published for all and sundry to see without his permission? Would he then claim a right which he currently argues does not exist?

One of the most obvious things for me when it comes to the use of social media, is the question of whether or not something has been proffered for publication or not. The internet generally sort of acts like a giant newsstand on the street corner, except that the barriers which used to exist when it came to publication (printing costs, access to space on the newsstand etc) are vastly reduced to the point of almost zero. Although the very point and aim of the internet was the fast dissemination of information, the very act of publishing something still implies that consent has been given to publish that thing which has been published.

Mr Bagaric has this to say:
“Facebook has more than 800 million users of which more than 50 Per cent log on every day. Users select the amount and type of data they upload and commonly it includes photographs, often of a revealing nature, relationship status, work and study activity, likes and dislikes and intimate personal details.
Nothing it seems is out of bounds in terms of the information people share about themselves.”

Whilst I agree that nothing is necessarily out of bounds in terms of what people publish, which also sort of goes hand in hand with the right to free speech, it still nevertheless requires a willful act to publish something.
For instance, when I write a blog post, i am in fact required to press a button marked publish before it appears for general consumption. My permission is granted at that point if you will, by the willful act of pressing the button and consenting to publish. That is quite different to an invasion of privacy which is the publication of something without any consent to publication being granted.
Perhaps Twitter and Facebook are far more ethereal. In some respects they're like speaking in that whatever is communicated is done so more or less instantly but unlike the mere act of speaking, those words and pictures form a record which can be traced. Even then though, they still require someone at some point to consent to the thing to be published.
Some dispute though exists when Facebook in particular claims that everything posted and every detail which is offered to it, is its property. Facebook tries to claim in its Terms Of Service that because it offers a voluntary service that it has the right to on sell details given to it. I suppose that that's fair enough provided that that is what people signed up to but when a major corporation unilaterally decides to change how it deals with the public and by inference steal information from them which they thought they offered under different terms, no wonder they're not happy.

As with so many things there is a material test of intent which can be applied. If in surrendering details about one's self, what does the individual expect that the person to whom those details have been surrendered, will do with them? If you give details such as your address when you fill in a form to win some competition, they will generally tell you up front that they will then use those details to send you advert material. If though, you give details to someone in which there is a degree of professional trust, like a doctor or your child's school, you would hope that they would keep them confidential.
The most obvious reason for wanting personal details kept private is that of theft; theft of physical property, direct theft of money if banking details are obtained and perhaps the theft and violation of one's reputation and good character. I have heard of instances of prospective employers trawling Facebook and not hiring someone because they'd been prejudiced against them because of photographs which had been published; sometimes not even by them but by other people who had tagged them as being in photographs.

“Modern technology underlines the irrelevance of arguments for the need for more privacy. People are more likely to seek attention rather than anonymity.”

I would argue that technological advancements do no such thing. The invention of the telephone for instance did not instantly remove any right to privacy that people have when having a discussion. The Surveillance Device Act 2007 at least implies through the "prohibition on use, communication or publication of protected information" in Section 40 that a right in theory must exist, or else there wouldn't have been the need for legislative protection.
Modern technology does not underline the irrelevance of arguments for the need for more privacy at all; far from it and quite the opposite. Information can now be shared so quickly and easily that even something which consent was never given for can escape into the world with alarming speed and swiftness. If anything modern technology underlines the urgency of arguments for the need for more privacy. 

Presumably as head of the faculty of law at Deakin University, Mr Bagaric must have come across the United Nations' Universal Declaration of Human Rights at some point. The point is moot whether or not the rights contained in the document already existed or whether member states have decided to voluntarily embrace them but it seems somewhat strange to me that the brightest minds of a generation who had at the time recently witnessed some of the most gruesome horrors that the world has ever produced, would be wrong in including as Article 12.

http://www.un.org/en/documents/udhr/index.shtml
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Does Mr Bagaric mean to suggest that either the inclusion of this in the Universal Declaration of Human Rights is wrong, or that the codifying of any human rights is wrong, or that the very concept that people as a result of their inherent dignity do not possess any human rights at all? It is a very slippery slope indeed.
It appears that Mr Bagaric seems to think so, judging from other things he has written:

http://www.theage.com.au/news/Opinion/A-case-for-torture/2005/05/16/1116095904947.html
First, no right or interest is absolute. Secondly, rights must always yield to consequences, which are the ultimate criteria upon which the soundness of a decision is gauged. Lost lives hurt a lot more than bent principles.
Mirko Bagaric, from The Age 16th Dec 2005

No right or interest is absolute? Again I'd like to quote the preamble to the Universal Declaration of Human Rights: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Not good enough? Perhaps we should quote "one of the best-known sentences in the English language"?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Actually I'd like to hear from Professor Bagaric. It would be interesting to find out on what basis he thinks that his opinion is stronger, than the weight of thought and ideas which grew out of some of the bloodiest conflicts the world has ever seen.

2 comments:

RayOLite said...

If you've put pictures up on facebook when you've got drunk on saturday night, that's you're own fault. If you're future employer see them, then it's you're own fault. If you don't want bad pictures of yourself on facebook, then don't do stupid things.

Anonymous said...

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