Data Protection and Privacy: European and US Perspectives — Balancing the rights of privacy and the freedom of expression (Part I)

Identifying the scope of privacy in reference to the grounds on which it can be restricted.

Introduction

Privacy is a generally new concept, borne post-twentieth century arising from social and technological changes in society. The paramount issue privacy faces is the question considering different societies offer varying views. European jurisdiction has held quite a high threshold in protecting privacy, recognising however that privacy is not an absolute right. Differing viewpoints were exemplified by Frederick Davis in his article ‘What do we mean by Right to privacy?’; ‘If truly fundamental interests are accorded the protection they deserve, no need to champion a right to privacy arises. Invasion of privacy is in reality a complex of more fundamental wrongs.’ [1]

Nicole Moreham’s view point of ‘inaccessibility’ is somewhat narrow as she depicts that breaches of privacy not only prevent an individual ‘from obtaining the benefits of inaccessibility… more importantly, they communicate to the individual and to the world at large that the individual’s feelings and choices are not important. Privacy is therefore fundamentally bound up with respect for human dignity.’ [2] Daniel Solove forwards a theory based on conceptualising privacy with a ‘pragmatic’ approach, identifying the specific disturbances of privacy practices. [3] Across the Atlantic, privacy is held more as a social enabler rather than a restrictive mechanism. However in Europe, the protection of privacy is ‘justified by the concern for the autonomy of the individual’, recognising elements of ‘refuge, freedom, creativity and intimacy’. [4] This, insinuating privacy as a ‘legal technique for protecting the deeper and more foundational value of autonomy’. [5]

The latter complimenting Beate Rössler’s suggestion of privacy as a necessary condition to lead an autonomous life. [6] The lack of specific statutes in place to compliment these theories inhibit decisions to be made on a case to case basis. Therefore the above examples provide no more than ambiguity with regard to privacy rights. In Reynolds v Times Newspapers Ltd, the court cited the importance of balancing freedom of expression with that of reputation rights, regarding responsible journalism. [7] This was embossed in Bonnick v Morris as Lord Nicholl’s commented that ‘responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals.’ [8] Comparatively in the US case of New York Times v Sullivan, in order for a defamatory action to be realised, malice must be proven to have existed. [9] The United States’ First Amendment provision prioritising free speech contrasts with the English Courts in Reynolds, in prioritising reputation rights.

It is interesting to note that the attempt in balancing privacy with the freedom of expression may not eclipse the ‘chilling effect’ as recognised by the Court of Appeal in New Zealand in Lange v Atkinson, in which the principles of Reynolds were consequently rejected. [10] A broader scope of rule like that held in New York Times and Lange may offer much more transparency regarding privacy regulations, providing for a greater protection of free speech. Encompassing this, the grounds on which privacy can be restricted will be illustrated acknowledging the above provisions, in reference to public administration and justice, national security and public order and, freedom of expression.

1 Davis, F. South Dakota Law Review 1959 ‘What Do We Mean By Right To Privacy Leading Article;(Heinonline.org, 1959)
2 Moreham N A, Why Is Privacy Important? Privacy, Dignity And Development Of The New Zealand Breach Of Privacy Tort (2008) at 237–238.
3 Solove D, Conceptualizing Privacy; (Scholarship.law.berkeley.edu, Volume 90, Issue 4 Article 2, 2002). (Theory based on four categories based broadly on collection, processing, dissemination and invasion of private affairs).
4 Alberto Alemanno and Anne-Lise Sibony, Nudge And The Law (Bloomsbury Publishing 2015).
5 Id. p. 164
6 B Rössler, The Value of Privacy (Oxford, Polity, 2004) 72.
7 [2001] 2 AC 127; [1999] 3 WLR 1010; [2000] EMLR 1; [1999] 4 All ER 609
8 [2003] 1 AC 300, at 23
9 376 US 254 (1964). 10 [2000] 3 NZLR 385; [2000] 1 NZLR 257 (PC)