by Yuwei Lin
The responses from the governments to the
Snowden's (2013) revelations were largely framed under a discourse of “for
greater pubic good” (i.e. for national security in this context). Lately, the
popularity of the Internet and computers has engendered other episodes where
individual's privacy rights conflict with the public's information rights
(e.g., individual's “right to be forgotten” and the public's “right to know” in
the case of search engines’ responsibilities regulated by the EU Data
Protection Law). Search engines like Google use the discourse that “the public
should have the rights to information” to justify their surveillance over
users. This concept of 'public interests' in some way also resembles one of the
essences of journalism – to serve the public's rights to know. This conflict
between public's information rights and individual's rights to privacy can be
seen in the long-standing struggle over paparazzi, who exercise a form of
surveillance.
The tension between the public and the private
has long existed, predating the invention of the Internet. For example, while
contemporary British society may consider diversity and equality as fundamental
British values, we should remind ourselves that not so long ago, abortion, the
use of contraception, or engagement in same-sex sex used to be criminal (and
remain so in some countries and still controversial in modern society). Privacy
was compromised to serve 'public good' (morality). Siegel (2015) recounts a prominent example in protecting
for “liberty” and individual's right to privacy when it comes to sex and
marriage, whether sex in marriage, or
same-sex marriage:
In
1957, England’s Wolfenden Commission proposed to repeal criminal bans on sodomy
as infringing on sexual relations that were properly “private. (the Wolfenden
report 1963). In the ensuing debate over the Commission’s report, Lord Patrick
Devlin (1959) defended the use of the criminal law to enforce public morals, while H.L.A. Hart
(1963) countered by emphasizing the importance of protecting a sphere of
liberty, of individual privacy, from the reach of the criminal law.
This debate about whether and when it was appropriate to criminalize sex would
soon spread from public policy and political philosophy to constitutional law.
These historical events tell us that while
topics such as national security and terrorism appear to be at the heart of the
discussion about privacy these days, we shall not forget other forms of
surveillance on different platforms (e.g., social media) due to controversial
issues (e.g., racism, sexism, different forms of discrimination).
It is easy to be blinded by the recent discussion about
'state security' and 'terrorism' when it comes to 'surveillance'. But the
subject of surveillance is deeper than that. Numerous
studies have found that anonymity, one of the key essences of privacy,
both online and offline, is important for fostering individuality; privacy and
free expression are key to identities building (e.g., Livingstone 2008, Naples
& Maher 2002). A heavily surveilled society denotes the existence of
homogeneous morality (instead of diverse values). Surveillance is applied to
ensure everybody is following the same rules; no negotiations nor different
interpretations are allowed.
Surveillance therefore is an indicator reflecting how
liberal a society is. In a heavily surveilled society (note that there are
different forms of surveillance, including self-surveillance, community
surveillance, state surveillance), people enjoy less liberty and freedom.
Pondering why surveillance takes place and in what forms it is exercised allows
us to inquire what public and private interests are conflicting with each other
and why they exist. For example, in the case of state surveillance in the name
of terrorism, are both the state (the public) and individual citizens (the
private) given equal ground for expressing their interests and ideas (e.g.,
definitions of terrorism - what definition(s) are given to 'terrorism' and who
defines it)? In the case of other moral activities, how do we define 'damaging,
illegal, or indefensible conducts' or moralities in law?
I think journalism (and media) should provide
space for such dialogues, instead of becoming a propaganda machine for the
state to advocate one version of 'security'.
Other questions to be pondered are:
What are the alternatives to addressing the
conflict between State interests and individual citizen's rights? How do we
balance “the needs of the state against the rights of the individual, as well
as the risks and benefits inherent in data flows, international differences in
regulatory frameworks and current anxieties about the uses to which data may be
put, including its misuses” (Kuner 2015)?
References
Devlin, P. (1959) Enforcement of Morals.
Hart, L. A. (1963). Law, Liberty, and Morality 14-15.
Kuner, C. (2015). 'Christopher Kuner discusses
balancing the needs of the state against the rights of the individual', OUP
Podcast, URL: https://soundcloud.com/oupacademic/christopher-kuner-discusses-balancing-the-needs-of-the-state-against-the-rights-of-the-individual
Livingstone,
S. (2008). 'Taking risky opportunities in youthful
content creation: teenagers' use of social networking sites for intimacy,
privacy and self-expression'. New Media & Society, 10(3), 393-411.
Naples G J and Maher M (2002). 'Cybersmearing: A
Legal Conflict between Individuals and Corporations', Refereed article, The Journal of
Information, Law and Technology (JILT) 2002 (2),
<http://elj.warwick.ac.uk/jilt/02-1/naples.html>. New citation as at
1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/naples/>.
Siegel, R. B. (2015). 'How Conflict Entrenched
the Right to Privacy'. The Yale Law Journal 124 Forum 316, 2nd March
2015. URL: http://www.yalelawjournal.org/forum/how-conflict-entrenched-the-right-to-privacy
The Wolfenden Report: Report of the Committee on Homosexual
Offenses and Prostitution (1963)
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