In brief:
- Although the technological and societal threats to privacy are greater than ever, privacy is not dead and is worth fighting for.
- There is more private information in use, therefore more scope for misuse, and scrutiny has been turbocharged by technology, including AI.
- Even the most exposed and scrutinised families and public figures have the right to respect for their private and family lives, and to prevent unwarranted intrusion.
- The law recognises individual autonomy: a person's right to exercise close control over particular information about their private life.
- Being "for" privacy does not mean being against freedom of expression. They are two equal but competing rights, always in tension. The legal approach to privacy has built-in safeguards, including to prevent trivial claims, and it will not stop the publication of material that is genuinely in the public interest.
It is often said that privacy is dead. Over a decade ago, Facebook's founder Mark Zuckerberg claimed that privacy was no longer a "social norm"; that people had become so comfortable sharing more information, more openly and with more people, that the notion of holding back and protecting personal information was antiquated, even obsolete.
Technological and societal threats to privacy have only increased since then. Sceptics and certain sections of the media would have you believe that those who seek to assert their right to privacy must have something to hide - they are branded as "furtive", "evasive" or "secretive". Yet the human right to respect for private and family life is intrinsically connected to our respect for human dignity and autonomy, and legal protections for private information and – crucially – against unwarranted intrusion into private life, remain alive and well, and are consistently being applied in novel contemporary situations.
It is, without doubt, harder now to protect private information. For one thing, our private data and information is more in use, so the scope for misuse is higher. We are just at the start of an AI revolution, fuelled by data gathering on a massive scale, as well as increasingly sophisticated surveillance. Some technology, such as smart fridges and tracking apps, we can opt out of, but much of it, like biometric data collection, is built into everyday transactions, especially for security. It is almost impossible to live 'off grid'. Technology has also turbocharged scrutiny, not just by the press but by citizen journalists, activists and hackers. Private moments are more likely to be captured – from video doorbells to drones – and have never been easier to spread. The Coldplay concert embrace this summer, and the viral storm which followed, is just one example of the internet turned sleuth, judge and jury.
Even the most exposed and scrutinised families and public figures have privacy rights, which can – indeed must - be enforced confidently and consistently if we are not to concede the fight entirely. The best way to guard against loss of privacy is by being mindful about what we share, with whom, and how it is received by the recipient. It is prudent to set clear expectations before sharing – so that if information is not for onward dissemination, that is understood and agreed in advance. Equally, if privacy boundaries are set, they must be actively policed in order to be effective – and unlawful interference addressed.
It is often forgotten that privacy law does not just protect the keeping of secrets, but also against intrusion into the private spheres of our lives. The Supreme Court has upheld privacy injunctions, even in the face of considerable online speculation about the parties' identities, appreciating the significance of the additional scrutiny and media intrusion that would result in the injunction being lifted.
The law also recognises individual autonomy. At one time it was thought that disclosures in a given "zone" of a person's private life could defeat, or at least greatly reduce, the weight of any claim for privacy in respect of other information in the same "zone". That theory has been discredited. The starting point now is that a person has the right to exercise close control over particular information about their private life: to decide whether to disclose anything about a given aspect of that life and, if so, what to disclose, when and to whom. For public figures in particular, this fits with the established principle that they are not "fair game" simply because they seek favourable publicity in other aspects of their lives.
Being "for" privacy should not be equated with being "against" freedom of expression. These are equal but often competing rights, always in tension, and any interference with each must be necessary and proportionate. In other words, the legal approach to privacy has built-in safeguards, including to prevent trivial claims, and it will not stop the publication of material that is genuinely in the public interest. Privacy is worth fighting for. It is a human right, and should not be a dirty word.