DOCSLIB.ORG

Draft Background Paper: Friend Or Foe? Protecting Freedom of Expression and Privacy in the Digital Age

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Draft Background Paper: Friend Or Foe? Protecting Freedom of Expression and Privacy in the Digital Age Draft Background Paper: Friend or Foe? Protecting freedom of expression and privacy in the digital age May 2016 Draft Background paper: version accompanying public consultations on the Principles Table of Contents Introduction .................................................................................................................................. 3 The rights framework ..................................................................................................................... 5 The right to freedom of expression ............................................................................................... 5 The medium of expression ....................................................................................................... 5 Permissible limitations of freedom of expression ....................................................................... 5 The rights to privacy and the protection of personal data ............................................................... 6 Permissible limitations on the right to privacy ........................................................................... 6 The protection of personal data ................................................................................................ 7 The right to a reputation? ............................................................................................................ 9 The development of a balancing test under international law ....................................................... 10 Public figures ....................................................................................................................... 11 Non-public figures ................................................................................................................ 16 The role of reasonable expectation of privacy .......................................................................... 18 Privacy as a condition to free expression ........................................................................................ 20 Mass surveillance of digital communications .............................................................................. 20 Mandatory data retention and bulk data disclosure ..................................................................... 23 Trans-border data flows ............................................................................................................ 26 Restrictions on encryption ......................................................................................................... 27 Mandatory use or registration of identity..................................................................................... 28 Big, ambient and anonymised data analysis ............................................................................... 29 Open source intelligence gathering ............................................................................................ 30 Restrictions on investigative journalism and access to information ............................................... 32 Measures undermining the protection of sources and whistleblowers ............................................ 33 Privacy in conflict with freedom of expression ................................................................................ 35 Protection of reputation ............................................................................................................ 36 Protection of reputation under international law ...................................................................... 36 Protection of reputation under domestic law ........................................................................... 37 Balancing protection of reputation with freedom of expression ................................................. 41 Protection of personality and images .......................................................................................... 42 Personality rights in civil law jurisdictions ............................................................................... 42 Common law understandings of personality rights .................................................................... 43 Personality rights in ECtHR jurisprudence ............................................................................... 44 New challenges in the context of the Internet .......................................................................... 45 Balancing protection of personality with freedom of expression ................................................. 46 Protection of personal data ....................................................................................................... 46 Common law equitable actions and torts ................................................................................. 47 Data protection claims .......................................................................................................... 48 New challenges in the context of the Internet .......................................................................... 50 Balancing protection of personal data with freedom of expression ............................................. 54 Sanctions and remedies for privacy violations ............................................................................. 54 Pecuniary penalties and the compelled publication or retraction of statements .......................... 54 Prior restraint and prior notice ............................................................................................... 55 Criminal prosecution ............................................................................................................. 56 Protection orders .................................................................................................................. 57 Imposition of liability on Internet intermediaries ..................................................................... 58 ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 2 of 61 Draft Background paper: version accompanying public consultations on the Principles Introduction It is possible to see the rights to free expression and privacy as being two sides of the same coin, with the right to privacy enabling ordinary individuals the autonomy and dignity to independently develop and impart their ideas, opinions and information. The right to privacy provides the space and security necessary for individuals to seek out and receive information. Both rights play an essential role in placing fundamental restraints on the exercise of power by those who possess it – governments and their agents, as well as corporate actors and public figures. The right to freely express and receive information is a fundamental pillar of any democratic society, ensuring individuals are able to participate wholeheartedly in cultural, educational or political endeavours, and keep public and private power in check. In ensuring that individuals have a secure physical and intellectual space to seek information, expand their knowledge, develop opinions, and express ideas free from intrusion or critique, the right to privacy acts as a pre-condition to the exercise of the right to freedom of expression and information. The confidence to communicate our ideas and opinions, however controversial, is underpinned by the knowledge that we are protected from any unlawful interference with our communications by those we might wish to conceal them from. Yet the potential for conflict between these two pillars of a democratic society has also long existed, and indeed is provided for by international human rights law. To the extent that privacy can shield individuals from public scrutiny, it constitutes a restriction on the right to freely and unselfconsciously espouse opinions and report information. Oftentimes, the competing imperatives established by each of the rights can be difficult to reconcile, including when media reporting involves the exposure of private information of public individuals, situations which necessitate complex determinations of the definition of the public interest. The contest between free expression and privacy is particularly acute in the context of internet publishing platforms, social media networks and search engines that facilitate the vast and contemporaneous dissemination of information and expression, and which challenge traditional conceptions of journalism, private space, public figures, celebrity and publication. Digital technologies have multiplied the means for expression and information dissemination, creating new platforms for public and private speech, new opportunities for dissent and critique, and new ways of scrutinising State and corporate behaviour. At the same time, these digital technologies have enabled an exponential increase in the creation of private data pertaining to individuals' movements, communications, shopping habits, political preferences, and financial flows. This data is often generated and interrogated by the corporate entities which provide internet services and technologies, but also is increasingly tracked and surveilled by State actors as well, impacting on individuals’ privacy and chilling their free speech. Internet users are also consciously publishing greater amounts of private information about themselves and, as they interact with and make full use of publication platforms such as social media networks. The auxiliary effects of social media use include the proliferation of activities such as trolling,
Load more

Recommended publications
  • Self-Censorship and the First Amendment Robert A
    Notre Dame Journal of Law, Ethics & Public Policy Volume 25 Article 2 Issue 1 Symposium on Censorship & the Media 1-1-2012 Self-Censorship and the First Amendment Robert A. Sedler Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp Recommended Citation Robert A. Sedler, Self-Censorship and the First Amendment, 25 Notre Dame J.L. Ethics & Pub. Pol'y 13 (2012). Available at: http://scholarship.law.nd.edu/ndjlepp/vol25/iss1/2 This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARTICLES SELF-CENSORSHIP AND THE FIRST AMENDMENT ROBERT A. SEDLER* I. INTRODUCTION Self-censorship refers to the decision by an individual or group to refrain from speaking and to the decision by a media organization to refrain from publishing information. Whenever an individual or group or the media engages in self-censorship, the values of the First Amendment are compromised, because the public is denied information or ideas.' It should not be sur- prising, therefore, that the principles, doctrines, and precedents of what I refer to as "the law of the First Amendment"' are designed to prevent self-censorship premised on fear of govern- mental sanctions against expression. This fear-induced self-cen- sorship will here be called "self-censorship bad." At the same time, the First Amendment also values and pro- tects a right to silence.
    [Show full text]
  • DCDC Strategic Trends Programme: Future Operating
    Strategic Trends Programme Future Operating Environment 2035 © Crown Copyright 08/15 Published by the Ministry of Defence UK The material in this publication is certified as an FSC mixed resourced product, fully recyclable and biodegradable. First Edition 9027 MOD FOE Cover B5 v4_0.indd 1-3 07/08/2015 09:17 Strategic Trends Programme Future Operating Environment 2035 First Edition 20150731-FOE_35_Final_v29-VH.indd 1 10/08/2015 13:28:02 ii Future Operating Environment 2035 20150731-FOE_35_Final_v29-VH.indd 2 10/08/2015 13:28:03 Conditions of release The Future Operating Environment 2035 comprises one element of the Strategic Trends Programme, and is positioned alongside Global Strategic Trends – Out to 2045 (Fifth Edition), to provide a comprehensive picture of the future. This has been derived through evidence-based research and analysis headed by the Development, Concepts and Doctrine Centre, a department within the UK’s Ministry of Defence (MOD). This publication is the first edition of Future Operating Environment 2035 and is benchmarked at 30 November 2014. Any developments taking place after this date have not been considered. The findings and deductions contained in this publication do not represent the official policy of Her Majesty’s Government or that of UK MOD. It does, however, represent the view of the Development, Concepts and Doctrine Centre. This information is Crown copyright. The intellectual property rights for this publication belong exclusively to the MOD. Unless you get the sponsor’s authorisation, you should not reproduce, store in a retrieval system or transmit its information in any form outside the MOD.
    [Show full text]
  • ~'7/P64~J Adviser Department of S Vie Languages and Literatures @ Copyright By
    FREEDOM AND THE DON JUAN TRADITION IN SELECTED NARRATIVE POETIC WORKS AND THE STONE GUEST OF ALEXANDER PUSHKIN DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of the Ohio State University By James Goodman Connell, Jr., B.S., M.A., M.A. The Ohio State University 1973 Approved by ,r-~ ~'7/P64~j Adviser Department of S vie Languages and Literatures @ Copyright by James Goodman Connell, Jr. 1973 To my wife~ Julia Twomey Connell, in loving appreciation ii VITA September 21, 1939 Born - Adel, Georgia 1961 .•..••. B.S., United States Naval Academy, Annapolis, Maryland 1961-1965 Commissioned service, U.S. Navy 1965-1967 NDEA Title IV Fellow in Comparative Literature, The University of Georgia, Athens, Georgia 1967 ••••.•. M.A. (Comparative Literature), The University of Georgia, Athens, Georgia 1967-1970 NDFL Title VI Fellow in Russian, The Ohio State University, Columbus, Ohio 1969 •.•••.• M.A. (Slavic Languages and Literatures), The Ohio State University, Columbus, Ohio 1970 .•...•. Assistant Tour Leader, The Ohio State University Russian Language Study Tour to the Soviet Union 1970-1971 Teaching Associate, The Ohio State University, Columbus, Ohio 1971-1973 Assistant Professor of Modern Foreign Languages, Valdosta State College, Valdosta, Georgia FIELDS OF STUDY Major field: Russian Literature Studies in Old Russian Literature. Professor Mateja Matejic Studies in Eighteenth Century Russian Literature. Professor Frank R. Silbajoris Studies in Nineteenth Century Russian Literature. Professors Frank R. Silbajoris and Jerzy R. Krzyzanowski Studies in Twentieth Century Russian Literature and Soviet Literature. Professor Hongor Oulanoff Minor field: Polish Literature Studies in Polish Language and Literature.
    [Show full text]
  • The Difficulty of Balancing the Doctrine of Prior Restraint with the Right of Privacy
    Touro Law Review Volume 31 Number 4 Article 3 August 2015 The Difficulty of Balancing the Doctrine of Prior Restraint with the Right of Privacy Bridgette Nunez Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the First Amendment Commons, and the Privacy Law Commons Recommended Citation Nunez, Bridgette (2015) "The Difficulty of Balancing the Doctrine of Prior Restraint with the Right of Privacy," Touro Law Review: Vol. 31 : No. 4 , Article 3. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol31/iss4/3 This First Amendment is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Nunez: Prior Restraint with the Right of Privacy THE DIFFICULTY OF BALANCING THE DOCTRINE OF PRIOR RESTRAINT WITH THE RIGHT OF PRIVACY SUPREME COURT OF NEW YORK APPELLATE DIVISION, THIRD DEPARTMENT Porco v. Lifetime Entertainment Services, LLC1 (decided April 17, 2014) I. INTRODUCTION The public has always been curious about the lives and per- sonalities of celebrities.2 In an effort to capitalize on this demand, networks seek exclusive rights to the individual’s story in order to produce docudramas.3 Unfortunately, docudramas may expose un- flattering facts in dramatic detail.4 Under the assumption that “the life of a public figure belong[s] to the citizens,” high public demand has given rise to unauthorized docudramas.5
    [Show full text]
  • Issues Paper on Cyber-Crime Affecting Personal Safety, Privacy and Reputation Including Cyber-Bullying (LRC IP 6-2014)
    Issues Paper on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying (LRC IP 6-2014) BACKGROUND TO THIS ISSUES PAPER AND THE QUESTIONS RAISED This Issues Paper forms part of the Commission’s Fourth Programme of Law Reform,1 which includes a project to review the law on cyber-crime affecting personal safety, privacy and reputation including cyber-bullying. The criminal law is important in this area, particularly as a deterrent, but civil remedies, including “take-down” orders, are also significant because victims of cyber-harassment need fast remedies once material has been posted online.2 The Commission seeks the views of interested parties on the following 5 issues. 1. Whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be amended to incorporate a specific reference to cyber-harassment, including indirect cyber-harassment (the questions for which are on page 13); 2. Whether there should be an offence that involves a single serious interference, through cyber technology, with another person’s privacy (the questions for which are on page 23); 3. Whether current law on hate crime adequately addresses activity that uses cyber technology and social media (the questions for which are on page 26); 4. Whether current penalties for offences which can apply to cyber-harassment and related behaviour are adequate (the questions for which are on page 28); 5. The adequacy of civil law remedies to protect against cyber-harassment and to safeguard the right to privacy (the questions for which are on page 35); Cyber-harassment and other harmful cyber communications The emergence of cyber technology has transformed how we communicate with others.
    [Show full text]
  • Photographs in Public Places and Privacy
    [2009] 2 Journal of Media Law 159–171 Photographs in Public Places and Privacy Kirsty Hughes In the last few years, the European Court of Human Rights (‘the Court’) has considered a number of cases relating to photographs taken in public places, and it is now clear that the jurisprudence has evolved significantly since the early cases in which no protection was afforded to the privacy interests of those photographed. The most recent cases (Reklos and Davourlis v Greece and Egeland and Hanseid v Norway) have extended the protection afforded by Article 8 of the European Convention on Human Rights (ECHR) so that the right is engaged at the stage at which photographs are taken.1 The author argues that whilst this development was necessary, there are a number of problems with the Court’s approach and that further guidance from the Court is essential. THEORIES OF PRIVACY-RELATED INTERESTS To fully understand the significance of the Article 8 ECHR photography cases, one has to have some idea of how these cases relate to the protection of privacy. There are many different theories of privacy and privacy-related interests and it is beyond the scope and purpose of this commentary to examine the details of those theories here.2 However, it * Clare College, University of Cambridge. 1 (App No 1234/05) [2009] EMLR 16 and (App No 34438/04) [2009] ECHR 622, available on HUDOC. 2 The literature is extensive; a good starting point would be Ruth Gavison, ‘Privacy and the Limits of the Law’ (1980) 89(3) Yale Law Journal 421; Hyman Gross, ‘Privacy and Autonomy’
    [Show full text]
  • MOSLEY V UNITED KINGDOM
    [2012] E.M.L.R. 1 1 MOSLEY v UNITED KINGDOM European Court of Human Rights (Fourth Section) Application No.48009/08 Lech Garlicki (President), Nicolas Bratza, Ljiljana Mijović, David Thór Björgvinsson, Päivi Hirvelä, Ledi Bianku, Nebojša Vučinić, Judges: April 12, 2011 [2012] E.M.L.R. 1 Freedom of expression; Misuse of private information; Newspapers; Notification; Positive obligations; Publication; Right to respect for private and family life H1 Human rights—misuse of private information—freedom of expression—art.8 and art.10—interim injunction—failure of newspaper to give advance warning of intended publication of private information—whether government obliged by art.8 to require press to notify person affected of intention to publish private information—no violation of art.8. H2 The applicant was the subject of an article published on March 30, 2008 on the front page and several inside pages of the erstwhile tabloid newspaper, the News of the World. The article was headlined “F1 boss has sick Nazi orgy with 5 hookers” and began with the sentence “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. The article was illustrated with still photographs taken from video footage secretly recorded by one of the participants. Edited extracts from the video, together with still images, were published on the newspaper’s website and became available elsewhere on the internet. H3 On March 31, 2008, in response to a complaint from the applicant’s solicitors, the News of the World took down the edited video footage from its websites and gave an undertaking not to put it up again without 24 hours’ notice.
    [Show full text]
  • A Right That Should've Been: Protection of Personal Images On
    275 A RIGHT THAT SHOULD’VE BEEN: PROTECTION OF PERSONAL IMAGES ON THE INTERNET EUGENIA GEORGIADES “The right to the protection of one’s image is … one of the essential components of personal development.” Grand Chamber of the European Court of Human Rights ABSTRACT This paper provides an overview of the current legal protection of personal images that are uploaded and shared on social networks within an Australian context. The paper outlines the problems that arise with the uploading and sharing of personal images and considers the reasons why personal images ought to be protected. In considering the various areas of law that may offer protection for personal images such as copyright, contract, privacy and the tort of breach of confidence. The paper highlights that this protection is limited and leaves the people whose image is captured bereft of protection. The paper considers scholarship on the protection of image rights in the United States and suggests that Australian law ought to incorporate an image right. The paper also suggests that the law ought to protect image rights and allow users the right to control the use of their own image. In addition, the paper highlights that a right to be forgotten may provide users with a mechanism to control the use of their image when that image has been misused. Dr. Eugenia Georgiades, Assistant Professor Faculty of Law, Bond University, the author would like to thank Professor Brad Sherman, Professor Leanne Wiseman and Dr. Allan Ardill for their feedback. Volume 61 – Number 2 276 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property Abstract ..........................................................................
    [Show full text]
  • Prior Restraint and the Police: the First Amendment Right to Disseminate Recordings of Police Behavior
    WALDMAN.DOCX (DO NOT DELETE) 1/8/2014 2:20 PM PRIOR RESTRAINT AND THE POLICE: THE FIRST AMENDMENT RIGHT TO DISSEMINATE RECORDINGS OF POLICE BEHAVIOR JACQUELINE G. WALDMAN* Freedom of speech under the First Amendment once again is in jeopardy—this time, in the form of unconstitutional prior restraints on personal video recordings. In the age of smartphones and media- sharing services like YouTube and Facebook, video recording and uploading or distributing has become a natural—and even expected— form of communication. It is commonplace that people record trivi- al, everyday moments, and, it remains routine for people to record noteworthy events or occurrences. In a certain sense, countless media users and sharers around the country have become the functional equivalents of journalists reporting and commenting on all aspects of life and society. Thus, in the wake of a growing public disillusion- ment regarding law enforcement and the criminal justice system, peo- ple have begun video recording police behavior as the officers are act- ing in the public discharge. Such videography has not existed without pushback from law enforcement. In response to these civilian-made video recordings, many police officers confiscate the video recording devices and/or de- stroy the files containing the recordings. This type of police interfer- ence has brought with it a storm of controversy. The debate centers on whether personal video recording of police conduct is “speech” that qualifies for First Amendment protection, and if so, whether con- fiscating and/or destroying the videos before their dissemination amounts to an unconstitutional prior restraint on speech—the most serious incursion of one’s First Amendment speech freedom.
    [Show full text]
  • Tech Giants, Freedom of Expression and Privacy
    TECH GIANTS, FREEDOM OF EXPRESSION AND PRIVACY TECH GIANTS, FREEDOM OF EXPRESSION AND PRIVACY Rikke Frank Jørgensen & Marya Akhtar e-ISBN: 978-87-93893-77-1 © 2020 The Danish Institute for Human Rights Wilders Plads 8K DK-1403 Copenhagen K Phone +45 3269 8888 www.humanrights.dk Provided such reproduction is for non-commercial use, this publication, or parts of it, may be reproduced if author and source are quoted. At DIHR we aim to make our publications as accessible as possible. We use large font size, short (hyphen-free) lines, left-aligned text and strong contrast for maximum legibility. For further information about accessibility please click www.humanrights.dk/accessibility 2 CONTENT 1 EXECUTIVE SUMMARY ................................................................................... 5 2 INTRODUCTION ............................................................................................. 7 3 WHAT IS A TECH GIANT ................................................................................. 9 4 HUMAN RIGHTS PROTECTION ...................................................................... 11 4.1 THE UN ..................................................................................................... 11 4.1.1 binding rules.......................................................................................... 11 4.1.2 guidelines and recommendations .......................................................... 13 4.2 THE COUNCIL OF EUROPE AND THE EUROPEAN COURT OF HUMAN RIGHT ...........................................................................................................
    [Show full text]
  • Trading Rabbit Ears for Wi-Fi: Aereo, the Public Performance Right, and How Broadcasters Want to Control the Business of Internet TV
    Vanderbilt Journal of Entertainment & Technology Law Volume 16 Issue 4 Issue 4 - Summer 2014 Article 5 2014 Trading Rabbit Ears for Wi-Fi: Aereo, the Public Performance Right, and How Broadcasters Want to Control the Business of Internet TV Jacob Marshall Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Communications Law Commons, and the Internet Law Commons Recommended Citation Jacob Marshall, Trading Rabbit Ears for Wi-Fi: Aereo, the Public Performance Right, and How Broadcasters Want to Control the Business of Internet TV, 16 Vanderbilt Journal of Entertainment and Technology Law 909 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol16/iss4/5 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Trading Rabbit Ears for Wi-Fi: Aereo, the Public Performance Right, and How Broadcasters Want to Control the Business of Internet TV ABSTRACT Aereo, a start-up company that allows consumers to stream free, over-the-air broadcasts to their phones and computers, seems rather innocuous. Yet the major broadcasting networks have attempted to shut Aereo down since its inception, claiming that Aereo infringes on their copyright. Aereo claims that its unique technology-where each user is assigned their own, individual antenna-ensures that Aereo does not infringe on the broadcasters'publicperformance rights. The United States Supreme Court has granted certiorarion the matter.
    [Show full text]
  • Broadcast Profanity and the Right to Be Let Alone: Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model Edward L
    Hastings Communications and Entertainment Law Journal Volume 31 | Number 1 Article 1 1-1-2008 Broadcast Profanity and the Right to Be Let Alone: Can the FCC Regulate Non-Indecent Fleeting Expletives under a Privacy Model Edward L. Carter R. Trevor Hall James C. Phillips Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Edward L. Carter, R. Trevor Hall, and James C. Phillips, Broadcast Profanity and the Right to Be Let Alone: Can the FCC Regulate Non- Indecent Fleeting Expletives under a Privacy Model, 31 Hastings Comm. & Ent. L.J. 1 (2008). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol31/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Broadcast Profanity and the "Right to Be Let Alone": Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model? by EDWARD L. CARTER,* R. TREVOR HALL' AND JAMES C. PHILLIPS I. Introduction .................................................................................................. 2 II. Brief Legal History of Profanity .................................................................. 7 A. Profanity Under the Common Law of Nuisance ................................... 8 B. The U.S. Supreme Court and Profanity ............................................... 12 C. Profanity's Place in the Law Today ................................................... 16 III. Free Speech Rationales and Profanity ....................................................... 22 IV. The FCC and Regulation of Profanity ....................................................... 26 A .
    [Show full text]