Privacy in a cyber-glasshouse world – post-script

I notice that a UK MP has just “outed” soccer player Ryan Giggs as the prominent sportsman who had a well-publicised extra-marital affair.  His identity was (and remains) the subject of a “super-injunction” issued by the UK High Court and based on rights to privacy in the Human Rights Act 1998.

This adds an interesting additional dimension to my recent post on privacy in a cyber-glasshouse world (which attracted almost no comment box debate for reasons I’m still at a loss to understand).  My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.  Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information.  The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating.  In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries.  Most people lived in villages and knew everyone else’s business anyway.  Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Nevertheless I can’t help thinking that this seemingly irreversible loss of privacy is not really a case for rejoicing, except perhaps for tabloid media proprietors like Rupert Murdoch.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Pedro
Pedro
10 years ago

“My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint …”

Certainly agree, it’s just good manners.

“… so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.”

Ahhh, weasel word alert. overwhelmingly prurient? How will you judge that? Surely defamation is enough of a jurisdiction. Also, why should privacy only be protected in the media? As a non-famous person would you not also be concerned if the neighbours spotted you with the Cocker Spanial and let everyone know about it down at the Bowlo?

Patrick
Patrick
10 years ago

You are not the only lawyer today publicly squirming at the masses’ taste for salacious prying…

LE thinks it is about responsibility and communication.

I think that privacy sucks, anyway. In ‘the old days’ decent people could be counted on to act as if God was watching, that disadvantages the honest, of course, so I much prefer the current regime where the only way to have any privacy is to not be worth looking up. If you are famous and don’t to be on the front page for cheating, don’t cheat.

Maybe I am speaking from a false sense of security given the considerable privacy that such a test affords me…

Pedro
Pedro
10 years ago

Ken, yes, being a Qlder I keep thinking there is a public benefit requirement on top of the truth. I still agree with everything you say about the awfulness of it, but I think there is a sensible limit to regulation and a privacy law will be a whole new world of hair-splitting.

Legal Eagle
Legal Eagle
10 years ago

Hello Ken, I’m going to write a detailed post on this issue shortly – yes it is complicated. I agree with your assessment of the ALRC’s proposed privacy laws, of which I am a fan!

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[…] Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases: My own view is that there is a distinct difference between the […]

Legal Eagle
Legal Eagle
10 years ago

Finally, as promised, my post.