We all know privacy is a fundamental human right, but what exactly is it? Article 8 of the Human Rights Act tells us that everyone has the right to respect for private and family life, and judges must decide with a certain amount of subjectivity whether an individual has a “reasonable expectation” of privacy. “Privacy” as a term has been defined by scholars and legal practitioners as intimacy, autonomy, dignity, solitude, control over personal information, reputation and protection from intrusion to name a few. It is all of these things, and yet none of them capture what we mean by privacy in its entirety – it is a state of semantic limbo.
This isn’t just about language though. Important legal decisions curbing press freedom and with implications for privacy protection are made around this concept, but a universal definition of privacy has never been agreed on – and probably never will be. And yet the difficulty in defining what privacy is, and why it is important, lies at the heart of an effective privacy law. The recent Twitter revelations over anonymised injunctions show that the law needs to be flexible in order to cope with newly emerging problems. As Ryan Giggs found out to his detriment, trying to regulate the online community with outdated legislation just does not work.
It all points towards the need for a pluralistic view of privacy. Academic Daniel Solove has spent the last ten years working on a pragmatic approach to the legal and philosophical problems around conceptualising privacy, by investigating its historical development and technological and social change. He focuses on the problems around clinging to a conception of privacy that is not suited to the Internet:
Life often involves exchanging information with third parties, clinging to the notion of privacy as total secrecy would mean the practical extinction of privacy in today’s world. (Daniel Solove, Understanding Privacy)
Solove suggests a bottom-up approach which focuses on the context of each legal case, and encourages judges to accept multiple conceptions of privacy, lest clinging to outdated definitions leads them astray in finding solution. If anything, privacy is best used as a shorthand umbrella term for a range of different issues – an abstract reference fails to be useful in solving legal and policy problems.
The privacy debate has become a cultural phenomenon in the UK, and is now played out in the press rather than being restricted to courtrooms and academic journals. We know that our privacy is valuable to us; Hugh Grant even described it as a “commodity” on Newsnight. But until privacy, and privacy harms, can be articulated effectively, judges, politicians and journalists will struggle to put privacy interests in their rightful place. To satisfy those on all sides of the privacy debate, accepting a pluralistic definition of privacy is the right way forward.
Natalie Peck is a journalist and PhD student focusing on the development of privacy law in the UK and the representation of ‘public figures’. You can follow her on twitter @NataliePeck.