Privacy violations are as old as civilisation. But as technology evolves, we can only protect what we can define.
Associate Professor Nicole Moreham from Victoria University of Wellington’s Faculty of Law has been thinking, writing and teaching about the law of privacy for 20 years and during her research has encountered time and again the “deep distress” caused to people whose privacy has been invaded.
What, though, is privacy? What might be said to constitute an invasion of it? And how might the law protect it?
These were issues Moreham addressed in a public talk followed by a conversation with Victoria’s Provost, Professor Wendy Larner, as part of the university’s Provost Lecture Series.
“I’m picking that each of you here will be able to think of something that you’ve done today that you didn’t want me to see,” said Moreham. “And I’m picking that each of you is going to think of something about yourself — either one of your thoughts or something from your past — that you don’t want me to know.
“Now the difficulty is that if all of you were to write down all of the things you didn’t want me to know and that you didn’t want me to see, you’d come up with a completely different list. The question I want to examine today then is how we can come up with a set of rules to protect what each of you reasonably has on that list given that each of those lists is going to be different. How do we work out what is private?”
We are encountering the question of what is private increasingly in our jobs and personal lives, said Moreham, because technology now gives people unprecedented access to previously hidden parts of other people’s lives.
“The important thing is that although the technology is new the need for privacy is not,” she said. “The ability to retreat from the world, to go to a place where we can be ourselves, we can drop the mask, be intimate with a few chosen people — this has been an essential part of what it is to be human in our society for many centuries. That hasn’t changed. What’s changed is our ability to undermine that desire to retreat. That ability has never been so good.”
In order to create a framework of legal principles around privacy, Moreham has analysed the “very rich source” of hundreds of judgments made since a misuse of private information tort was established in England and Wales in the early 2000s.
Moreham argues that the framework has relevance beyond the context in which it was developed.
“I hope it will also work, at least to some degree, for the New Zealand privacy tort, which has a slightly different test and way fewer cases, but is nonetheless developing along very similar lines [to the English and Welsh tort],” she said.
“Maybe it will help us too in New Zealand privacy legislation; perhaps to understand the protections of the Harassment Act or Harmful Digital Communications Act or Broadcasting Act.”
Any legal framework for privacy needs to balance certain factors, said Moreham.
“On the one hand we have a subjective privacy interest which means different things to different people and on the other hand we have a need for certainty and predictability in the law.”
For years, the response of legislators and decision-makers throughout the Commonwealth (the legal family to which New Zealand belongs) was to say, “This is all too hard, these competing imperatives are too difficult to align.”
" ... if you can’t work out what private means, you’re either going to end up doing something wrong by accident or you’re going to refrain from doing perfectly reasonable things for fear you’re going to get into trouble because of privacy."
When Moreham began her PhD on the subject in 1999, “you were still hearing this refrain pretty consistently. ‘Privacy is amorphous, it’s ill-defined, it’s lost its intuitive meaning.’ ’It’s too messy,’ we were being told, especially to line up against the very important interest of free speech which is often on the other side. An interest which has been articulated many times and very clearly over the centuries.”
But Moreham disagrees that the need for both certainty and flexibility cannot be accommodated within the privacy tort.
“[Privacy] can be defined with enough precision for it to be relied upon as a legal concept. You just have to build the subjectivity into the definition. You have to make sure the definition recognises privacy can mean different things to different people.”
The 2004 ruling that established the misuse of private information tort in England and Wales introduced the standard of “a reasonable expectation of privacy”. This test, which is also relied on in New Zealand torts of privacy, puts “an objective check on the subjectivity of privacy”.
Courts in in England and Wales and New Zealand have identified many things in which people have “a reasonable expectation of privacy” by virtue of the nature of the information or activity in question. These include sex lives, relationship breakdowns, medical records, drug addiction and treatment, and mental illness.
Moreham quoted American privacy expert Professor Daniel J Solove’s 2006 article ‘A Taxonomy of Privacy’, where he said there are attributes “people view as deeply primordial, and their exposure often creates embarrassment and humiliation. Grief, suffering, trauma, injury, nudity, sex, urination, and defecation all involve primal aspects of our lives — ones that are physical, instinctual, and necessary. We have been socialised into concealing these activities.”
But she said it was necessary to be nuanced about any list.
“Because there are going to be some things that you quite reasonably have on any list of things that you think are private that no one else is going to have on theirs.
"Maybe you’ve got a stalker or a violent ex and so you keep your address a very closely-held secret and most people don’t. Maybe while the rest of us allow our hair to be readily seen you choose to wear a wig or you wear a hijab in public for religious reasons.”
These things need to be accommodated into any privacy framework by incorporating choice, said Moreham — “people’s own choice about how they want to have their information or particular activities treated”.
That, however, depends on people signalling their choices to others in a way “society would usually expect to be respected”, she said.
Clothes, curtains, walls, fences, “the bush you pop behind if you get caught short in the Tararuas” — these are “all physical barriers we put up to protect aspects of ourselves from others’ observation”.
The barrier might be the mode of communication used, said Moreham.
“When I write on a private email account or speak on a private phone, then that is not open to others unless they are hacking in illegitimately.”
You might turn your back to the camera when a photograph is taken or move away to take a phone call so people can’t hear you.
By these methods, said Moreham, “It is possible to devise a privacy right which is sufficiently predictable and consistent to satisfy the requirements of legal doctrine, whilst at the same time recognising the inherent flexibility and subjectivity of the privacy right.”
But there is another “extremely important” balance to keep in mind too, she said — the public interest defence and protecting legitimate newsgathering.
Having a privacy framework and being clear about the nature of the public interest defence would help prevent the “chilling effect” of imprecision, she said.
“Because if you can’t work out what private means, you’re either going to end up doing something wrong by accident or you’re going to refrain from doing perfectly reasonable things for fear you’re going to get into trouble because of privacy.”
Sometimes we “want to know what people are up to when they don’t want us to”.
It is possible, though, to protect privacy while at the same time ensuring matters in which the public have a genuine interest come to light, she said.
Having a precise articulation of when something is private is the first step in that process.