Is the cat out of the bag for privacy?

Posted on 13 December 2017

Is the cat out of the bag for privacy?

The right to a private life is as fundamental as rights to freedom of expression and liberty itself. Intrusions into privacy, family or home life are sorely felt. The last decade seems to have seen the loss of privacy through an explosion of information sharing and surveillance, as well as a contrasting renaissance of the importance of privacy as a right to be defended and protected.

The desire to share personal information and the usefulness of personal data has not abated, therefore is the cat out of the bag for privacy? Will a time come when sharing is no longer the norm?

Social media platforms such as Instagram, Facebook and Snapchat all allow the sharing of the intimate details of everyday lives with others. Every day users of these apps open up their lives in a way that wasn't possible before mobile phones and cameras were in every pocket and when mass audiences were only reached via newspapers. Tweet by tweet, picture by picture, people open up a window into their worlds in a way that would have seemed impossibly futuristic a decade ago.

Alexandra Whiston-Dew, a Solicitor in Mishcon de Reya's Private department, has seen a rise in cases where social media has played a role. She told me, "Instances of harassment, blackmail and defamation take on a new dimension when social media is added to the mix. Often the impact of threats to disclose information or the impact of disclosure can have a wider, more long-lasting effect on the reputation of an individual or business. This can be devastating for our clients, especially when tied to their business interests."

These cases highlight the other side of the coin for privacy: the security of information. Privacy rights often set the requirements for security, defining the impact that the loss or misuse of information has on an individual and therefore how it should be protected. Providing this security often means protecting individuals from themselves, making data both secure and private by default, with users having to take deliberate informed action to share it as widely as before.

In stark contrast to the sharing of personal information with abandon is the increasing awareness of surveillance and threats to privacy rights. The Arab Spring demonstrated the underlying awareness of these threats with more and more people using encrypted chat apps to communicate, aware that they may have been monitored. The Snowden revelations of mass surveillance by governments have made the big brother concept a reality for many, especially in relation to the United States.

The private information we have been sharing has, in some ways, never changed. However, use of technology now increases the scale of the audience information can reach and the speed in which it can be shared, magnifying both the upside and downside of information. When 'Citizen Journalists' quickly report on current events it opens up new insights, however the rise of alternative facts and a 'post truth' world use the same access and scale to restrict access to the truth.

Ultimately the sharing of information is as highly dependent on the circumstances in which it was shared and the intended audience as it ever was. The highest profile embarrassments have come from instances in which information from a private group has been made public, or when it included information which no one knew it contained. Alexandra believes that "this disclosure of private information often represents a real crisis for an individual or business. There is significant demand from the public for senior executives to justify the way they conduct themselves and their businesses. A scandal as a result of the disclosure of private or confidential personal or commercial information is big news and not easily quashed or forgotten."

At present, there are two clear cultural groups with a strong interest in privacy, one individualistic and behavioural and the other collectivist and protectionist in nature. They are split along generational lines, with millennials sharing personal information with abandon, seeing it as part of the social freedoms of their generation. The older generation is more conservative, with less of a need to share, seeing data and our rights as something to be protected or restricted. Alexandra has found that "some of our clients often feel exposed by the amount of information available online about them, their families and their businesses. Other clients have embraced the opportunities that the sharing of information can bring, including gaining access to wider audiences."

Whilst this reflects social perception, its realisation on the world stage is more complex. Privacy rights are strongly linked to libertarian values, with some of the first privacy legislation being created in Europe and California. Outcry against mass surveillance has been strongest amongst countries such as Germany with strong social connections to protecting individuals from the state. These countries boast thriving digital economies and contain generations that have always shared information.

With the protection of citizens' data comes the protection of sovereignty of data. Russia now prevents personal data from being held outside of its borders, and the European General Data Protection Regulation goes some way to limiting transfers outside of European borders by raising the bar for their protection and security. This stance is likely to increase, following the protectionist views of many countries, including European nations and the United States. Businesses should understand the risk of data sharing agreements such as Privacy Shield the US/EU agreement becoming nullified.

Laws on privacy and data control are still developing, but they are here to stay for the foreseeable future. "The Government and the Courts have struggled to keep up with the fast pace of change to social media and information sharing online. There is a general intention to support victims of disclosure without consent but when there is so much information already out there, it can be difficult to calculate the damage."

There is no doubt that with each new generation, attitudes and tolerances will change. Information deemed private, or subject to censure in the past, is now freely shared without embarrassment. However as 'digital natives', who have grown up with technology, become more aware of the impact of oversharing or failing to secure private information, more conservative attitudes to privacy may be adopted. Ultimately, any information in the public domain can have real world consequences. Both individuals and business should regularly take time to review publically available information and understand the impact on their personal security, their future employment or their brand.  If you would like to talk to one of our legal or cyber experts to discuss the risks, or to understand how to better protect yourself, your business or your family, please contact Joe Hancock.

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