Arne Hintz welcomes a timely contribution to the post-Leveson debate
The relation between privacy, media and communication is one of the key themes of the current historical moment. In the UK, the phone-hacking scandal and the Leveson report have highlighted offensive media intrusion into people’s private lives; the revelations about the Prism and Tempora surveillance programmes point to the extent of governmental spying on our online communication; and self-disclosure on social media is redefining classic notions of privacy.
“Do we remain a free society when we surrender our right to be unobserved?” asks the renowned law scholar and privacy expert Raymond Wacks at the beginning of his timely new book. In Privacy and Media Freedom, he shines light on the complex conflict between privacy and freedom of expression. Taking the phone-hacking scandal as a starting point, he offers a comprehensive legal perspective and helps us navigate through the various traditions, interpretations and practices of privacy law. He traces the historic emergence of privacy norms, discusses recent changes in privacy protection in the English law, addresses different levels of jurisdiction (the national as well as the European Union level), and considers trends including the unprecedented collection and storage of data in digital environments. We learn how courts have addressed key issues such as the public interest, where the division lines lie between the private and public realm, and what balancing tests have been applied to reconcile freedom of expression and privacy.
Rather than expanding the notion of privacy to the wide and fuzzy area of ‘private life’, he makes a case for the law to secure key personal ‘facts’
While Wacks is concerned about privacy protection and intrusions by the media, he does not necessarily argue for the expansion of privacy norms. On the contrary, he criticises “the perils of privacy inflation” as current law and legal interpretation are, in his view, overly broad and complicated, and therefore too vague to provide adequate guidance. Instead, he argues for a focus on what he calls “personal information” and on specific interests of the individual in controlling the distribution of personal details. Rather than expanding the notion of privacy to the wide and fuzzy area of “private life”, he makes a convincing case for the law to secure key personal “facts” and sensitive information, and to prevent offensive intrusion by actors such as the media. He thereby seeks to make privacy operational, underpinned by objective criteria. The book ends, consequentially, with a proposal for a privacy bill. It thus offers not only a useful context to the post-Leveson debate but also shows avenues for action. Wacks believes that media self-regulation has been inadequate and that robust legislation for protecting personal information is necessary.
While we learn a lot about privacy law, the other side of the equation – media freedom – is treated less thoroughly. Developments in the media industry (such as commercialisation and concentration) and in online environments (such as surveillance) provide not just new challenges but also affect our understanding of freedom of expression. The meaning of internet-related norm changes (such as principles of openness and the now-classic notion that “information wants to be free”) is just one of the relevant dimensions that deserve more discussion in this context. There is little reference to the current struggle between state-based internet controls and the various attempts at circumvention (such as encryption, leaking and open-data campaigns) or to the controversies over libel practices in the UK.
Privacy and Media Freedom manages what few academic books accomplish: it intervenes in a current political and social debate. While the quick turn-around will have made it difficult to offer an in-depth consideration of the implications of the phone-hacking scandal or to connect the argument more thoroughly with Leveson’s proposals, nevertheless this book is a valuable and timely contribution to the post-Leveson debate.