Why our public lives need privacy protections
On online message board Reddit last week, in a section called “Shower Thoughts”: “What Orwell failed to predict was that we’d buy the cameras ourselves, and our biggest fear would be that nobody was watching.”
Privacy advocates are grappling with many things at the moment – stagnant state and federal laws, powerful foes in the media, lack of movement in common law, sleek new technology – but one of the strangest things is that we are enthusiastically enabling our privacy to be breached.
We are aware, but seem largely unconcerned, that our metadata is being collected, or that we store everything from financial records to nude images in easily breached, poorly understood “clouds”. We tag ourselves on pictures that we publish to audiences comprising people we do and do not know, giving away our locations in time and space.
Following the Edward Snowden revelations, a lot of the rage about privacy felt like rage in the abstract. Behaviour did not really change. I knew of only one person who stopped using Gmail and Facebook and was worried about geo-tagging. He said something cryptic about going on the “dark web”.
Other people who wanted to protect their privacy usually had terrible things written about them on the internet: the son of a famous comedian, the relative of a premier, the subjects of internet shaming. It was about reputation rather than principle. They anxiously Googled themselves and suffered a thousand cuts at the results. The only way to get rid of it seemed vaguely absurd, but befitting of the times. You create so much content about yourself – blogs, tweets, articles, Tumblr blogs, Facebook fan pages – you push down the offending item to the next page of the Google rankings. The only way to maintain privacy in this situation is to perversely create so much information about yourself – so much noise, flood the zone – that it forms a sort of cloud covering. It is something that Orwell’s Big Brother might have said: Publicity is privacy.
Last week Radiohead removed all traces of themselves from the internet. They scrubbed their Facebook page, their Twitter feed, their Google+ page and their website, and slowly their internet presence went blank.
For many of us, this type of privacy – ridding the internet of yourself – is out of reach. We just cannot afford it.
We need this public part of the internet – or feel as if we need it – to get jobs, keep in touch with our friends, maintain a “profile”, market the goods and services we are selling, keep boredom at bay.
The true elites do not need the internet. Not for them is the Facebook page or the embarrassing old Tumblr blog that won’t disappear. They were never on there in the first place. The internet is for proles.
The true expression of this elitism is privacy. Not having an internet presence means you cannot be seen in the way that most of us are now seen. We’re seen without our explicit consent. We’re seen and judged by people we don’t know. We’re followed – thanks to our devices and our data.
Yet increasing calls in Australia by bodies such as the Bar Association and the Australian Law Reform Commission (ALRC) to claw back some of this privacy are largely met with indifference by legislators.
Of course, the law hasn’t kept pace with technology. Even the most sinister surveillance state couldn’t have imagined the invention of the iPhone, let alone the fact many citizens would freely carry, utilise, covet and pay for them.
According to the most recent report into the state of privacy laws by the ALRC, “A person’s privacy may be invaded in a range of ways. Such invasions may occur with increasing ease and frequency in the digital era, when the mobile phones in our pockets are all potential surveillance devices, drones are becoming cheaper and more advanced, and personal information once put online seems impossible to destroy or forget.”
The report – released in 2014 – recommended new laws to keep up with new breaches.
A cause of action for serious invasion of privacy does not presently exist in Australian law, yet there seems little movement to adapt laws.
A New South Wales parliamentary committee was the latest to examine the issue and recommended the state “lead the way” in creating a new legal action for invasions of privacy.
Last week former High Court judge Michael Kirby let rip in a speech in Sydney about the current paralysis in privacy law reform.
Having fought for reform for 40 years, Kirby said it was “unacceptable” that no adequate privacy laws exist anywhere in Australia.
He blamed a “decline in … journalistic standards” and the increase in social media for creating a hostile environment for privacy.
“The conduct of relentless personal campaigns against individuals is a feature now of much contemporary Australian media, not only in the print media and not only in tabloids,” he said.
“Media and other publishers become judge and jury of their own abuses. They decide whether any correction or redress for breaches of privacy will be granted. The law is effectively silent for those who want to challenge such self-interested decisions.”
Common law is crawling towards reform. A common law tort for invasion of privacy has not yet developed in Australia, although the High Court left open the possibility of a civil remedy for breach of privacy in 2001’s Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.
An invasion of privacy tort was recognised in two lower court decisions but the matters were settled too soon to pass into common law.
What Kirby is calling for is a civil remedy to deal with serious breaches of privacy. Kirby gave the example of a patient in NSW who was photographed without her consent by nurses, who then passed around the photograph for mockery. The patient wondered if it was because she was a “larger woman”. There is a lacuna – an individual in this situation can’t sue for breach of privacy.
At the time, the victim told the ABC that when she heard about the photos she “felt like my world was exploding”.
Geoff Holland, a barrister and co-ordinator of media law at University of Technology Sydney, agrees that the law needs to expand remedies for breach of privacy. “We all need to accept that invasions of privacy are very real,” he told me. “They can destroy people’s lives and parliaments need to take the issue seriously and introduce new privacy laws.”
Holland gives an example of a local situation where there is no redress for victims of a breach of confidentiality. This year Mitchell Pearce, an NRL player, was filmed without his consent, engaging in a simulated sex act involving a dog.
On the tape, an apparently drunk Pearce says: “I’ll fuck that dog, I don’t give a fuck, I don’t have a sexuality.” At some point, he urinates on a couch.
Holland likens the case to that of the former boss of motorsport’s governing body, the FIA, Max Mosley, who was awarded £60,000 in damages against News of the World after the tabloid exposed his involvement in what it called a Nazi-themed sadomasochistic sex act involving several female sex workers.
The judgement extended the right to privacy in Britain – but relied on European Union provisions that made the right to privacy part of a suite of enforceable human rights.
“The footballer that urinated on the couch – that is a similar situation,” Holland says. “The approach in Australia, however, is not to recognise the breach of privacy or confidentiality when there is publication.”
A few nights ago I read an old Jonathan Franzen essay – “Imperial Bedroom”. I knew it was old because it was worried about privacy. He was worried that Linda Tripp taped Monica Lewinsky. That telemarketers ring him up and can tell where he made his latest convenience store purchase. That people have these telephones they use on the street, in public places, and say all manner of private things into them, such as “I love you”.
These breaches seem quaint now. In 1998, when the essay was published, Franzen was alarmed about encroachments on what he calls “the right to be left alone”. But he was in the minority.
Maybe it’s because our elevation of privacy is a new thing, he argues. We may understand that our privacy is vulnerable to breach or, more realistically, is even being continually breached. But we don’t necessarily feel the breach. Maybe this is the issue. We cannot visualise something or someone who is watching us, who might care enough to monitor our eBay purchases and our Facebook Messenger chats. Our data is not us – it’s an abstraction.
The difference between knowing that your privacy is probably compromised and feeling that your privacy is compromised is worlds apart.
The feeling when our privacy is compromised – a picture or video or private message of ours gets seen beyond our own walls – is horrendous.
It is a feeling, Franzen points out, at the emotional core of many crimes, from rape to stalking to burglary to trespass.
Do we even have a word for it yet – that sick, spreading feeling that other people have seen you? Seen you in a way that you don’t want to be seen by people you don’t know, or people who don’t know you in certain contexts. Your insides are out, exposed.
Right now, we have to police not only our own behaviour online, but the behaviour of others.
“We all need to be extremely careful about what photos we post online,” Holland says. “But not only that, it’s about what other people put up about us – such as if I go to a party and I am tagged.”
Even then – with such vigilance – we are not protected. Think of the vulnerable patient under anaesthetic or the drunk NRL player or the boorish professor writing the racist email to a friend. All the Barry Spurrs. All the Nova Perises. All the Mitchell Pearces. All the shame. We need to be protected from the actions of others.
It’s only when we feel the burn, when we suffer from unwanted exposure, when we want to die from shame that we’ll join Kirby in his very necessary call for privacy law reform.
This article was first published in the print edition of The Saturday Paper on May 14, 2016 as "Privacy parts". Subscribe here.