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Reputational Privacy and the Internet: a Matter for Law? Elizabeth Anne Kirley

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Reputational Privacy and the Internet: a Matter for Law? Elizabeth Anne Kirley Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 5-7-2015 Reputational Privacy and the Internet: A Matter for Law? Elizabeth Anne Kirley Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Part of the Internet Law Commons, and the Other Law Commons Recommended Citation Kirley, Elizabeth Anne, "Reputational Privacy and the Internet: A Matter for Law?" (2015). PhD Dissertations. 8. http://digitalcommons.osgoode.yorku.ca/phd/8 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. REPUTATIONAL PRIVACY & THE INTERNET: A MATTER FOR LAW? Elizabeth Anne Kirley A Dissertation Submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Graduate Program In Law Osgoode Hall Law School York University Toronto Ontario May 2015 © Elizabeth Anne Kirley, 2015 ABSTRACT Reputation - we all have one. We do not completely comprehend its workings and are mostly unaware of its import until it is gone. When we lose it, our traditional laws of defamation, privacy, and breach of confidence rarely deliver the vindication and respite we seek due, primarily, to legal systems that cobble new media methods of personal injury onto pre-Internet laws. This dissertation conducts an exploratory study of the relevance of law to loss of individual reputation perpetuated on the Internet. It deals with three interrelated concepts: reputation, privacy, and memory. They are related in that the increasing lack of privacy involved in our online activities has had particularly powerful reputational effects, heightened by the Internet’s duplicative memory. The study is framed within three research questions: 1) how well do existing legal mechanisms address loss of reputation and informational privacy in the new media environment; 2) can new legal or extra-legal solutions fill any gaps; and 3) how is the role of law pertaining to reputation affected by the man-computer interoperability emerging as the Internet of Things? Through a review of international and domestic legislation, case law, and policy initiatives, this dissertation explores the extent of control held by the individual over her reputational privacy. Two emerging regulatory models are studied for improvements they offer over current legal responses: the European Union’s General Data Protection Regulation, and American Do Not Track policies. Underscoring this inquiry are the challenges posed by the Internet’s unique architecture and the fact that the trove of references to reputation in international treaties is not making its way into domestic jurisprudence or daily life. This dissertation examines whether online communications might be developing a new form of digital speech requiring new legal responses and new gradients of personal harm; it also ii proposes extra-legal solutions to the paradox that our reputational needs demand an overt sociality while our desire for privacy has us shunning the limelight. As we embark on the Web 3.0 era of human-machine interoperability and the Internet of Things, our expectations of the role of law become increasingly important. iii DEDICATION This dissertation is dedicated to Jean and Austin – my sky, my earth iv ACKNOWLEDGMENTS To Jerry: my lifeline & companion in this and all my misadventures For the sheer joy they bring: Liam Austin & Evan Michael For their wisdom: Michael, Peggy, Brian, Mary, Peter, Martha, and Lauren For their enduring friendship: Jan, Jay, Maria, Bill, Troy, Giovanni & John For the lessons they teach: Dan, Stacey, Colin, Jasmine, Katie, Mike, Jamie, Anne, Colleen, Craig, Mary, Steve, Trish, Roy, Chris, Reid, Dan, Lara, Leena, Austin, Leland & Adam For collegiality: Stephen, Betty, John, Mary, Thea, Pascale, Carolyn, Christine, Fariborz & Michael For his infectious curiosity: Fr. Kevin Kirley CSB For building my resolve and teaching me the craft: Margaret & Liora Merci bien! v TABLE OF CONTENTS Abstract………………………………………………………………………………....ii Dedication…………………………………………………………………………...….iv Acknowledgments…………………………………………………………………..…..v Table of Contents…………………………………………………………………...…..vi List of Tables……………………..……………………………………………………..ix List of Illustrations………………………………………………………………..…….x CHAPTER 1 Reputational Risks On the Internet…………………………….1 1.0 Introduction…………...……………………………………………...…1 1.1 The Challenge……………………………………………………….….2 1.2 The Medium: A (very) Brief History of the Internet…………….…......5 1.3 Law’s Purpose in Online Societies……………………………......…....15 1.4 Limits to the Study: Of Apples and Oranges………………........…......16 1.5 Methodology…………………………………….………………..…....20 1.6 Scope and Outline…………………………………………….....….......22 1.7 Importance of the Study……………………………………….….........24 CHAPTER 2 Literature Review………………………………………...…….....25 2.0 Introduction………………………………………………………….....25 2.1 Theorizing Reputation……………………………………………..…..25 2.2 Theorizing Memory……………………………………………..,…......46 2.3 Theorizing Privacy……………………………………………...…........57 2.4 Privacy as a Social Construct…………………………………………..72 2.5 Gaining Oblivion: the Right to be Forgotten……………………..........76 CHAPTER 3 The Technology Of Reputational Harm………………………....84 3.0 Introduction………………………………………………………….....84 3.1 Technological Idiosyncrasies of Digital Media…………………….......84 a Reconfiguring Information Bits……………………………......84 b Cloud Storage, Anonymity, and Attribution ……………..........87 i Anonymity & Attribution……………………………….......88 ii Encoding, Encryption, & Hashing…………………….........90 iii Sharded or Fragmented Data………………………….........91 c Geolocation & Other Surveillance Capabilities…………......…92 d Distinguishing Processor, Controller, & Publisher……............96 e The Speed and Ambit of Dissemination………………...….......99 f Memory and Durability: the Half Life Debate………..……...103 g Is Digital Speech Different?............................................................105 vi 3.2 How Harm is Done………………………………………………….....108 a Exposure Harms: Technology & Case Examples…………......108 i Exposure by Other Users………………………………......108 ii Exposure by Self…………………………………………....115 iii Exposure by Journalists…………………………………....121 b Disclosure Harms……………………………………………...122 i Mishandling of Big Data…………………………………...122 ii Studies of Big Data Vulnerability ……………………….....126 iii Data Brokers………………………………………………..130 iv Cookies……………………………………………………...133 v Lingering Data & the Power of Internet Companies……...134 3.3 Case Studies…………………………………………………………....140 a Exposure: The EU Mosley case…………………………….....140 b Disclosure: The US Martin case…………………………...….143 c Significance of Mosley & Martin Cases…………………...…..145 3.4 Summary………………………………………………………….........148 CHAPTER 4 Legal Responses To Reputational Injury……………….....150 4.0 Introduction…………………………………………………………....150 4.1 International, Transnational, & Domestic Response……………….....151 a Conventions & Declarations…………………………………...151 b EU/US Jurisdiction & Choice of Law in Internet Decisions.....168 c Domestic Responses…………………………………………....179 4.2 Private Law Responses……………………………………………........182 a What Plaintiffs Seek: Types of Remedy……………………......182 b Causes of Action…………………………………………….......184 i Defamation………………………………………….......184 a Conceptual Difference………………………......185 b Public or Private Law?.............................................187 c The Requisite Elements…………………….......188 d Internet Defamation……………………………193 ii Privacy torts……………………………………………204 iii Breach of Confidentiality…………………………….....209 iv Data Disclosure……………………………………........211 c ISP Liability………………………………………………….....216 4.3 Outliers: Criminal Defamation, Insult Laws, Opinion, & Creepiness.....223 a Criminal Defamation…………………………………………....223 b Insult Laws………………………………………………….......228 c Opinion……………………………………………………….....229 d Creepiness……………………………………………………....232 4.4 Reputation Online: Is Digital Speech Different?.........................................233 4.5 Is the Bench Ready for Digital Speech?.........................................................235 4.6 Summary…………………………………………………………….......240 vii CHAPTER 5 “New Legalities” And Other Solutions……………………….....243 5.0 Introduction…………………………………………………………...244 5.1 User-Focused Legal Initiatives……………………………………......244 a Erasure Laws: The European Harmonized Approach………..244 i A Brief Legislative History…………………………....244 ii Scope and Significance………………………………...246 iii Responses to EUDR with Respect to Reputation……251 b Do Not Track Laws: The US Sectoral Approach…………......256 i A Brief Legislative History…………………………....256 ii Scope and Significance………………………………...258 iii Responses to DNT with Respect to Reputation……...260 c Can EU and US Agree on Data Protection Mechanisms?........265 5.2 New Legal Responses…………………………………………….........267 a Internet Companies as Controllers: Google Spain…………....267 b Reputational Injury as a Tort………………………………....269 c A Discrete Law for Digital Speech…………………………....270 i A Critical Need………………………………………...270 ii Aim, Scope, and Form of Speech Law………………....275 5.3 Extra-legal Responses………………………………………………....277 a Online Civic Monitoring……………………………………....277 b Online Reputation Ranking Systems……………………….....281 c Expiry Dates…………………………………………………..284 d A Bifurcated Space for Online Speech………………………...285 5.4 Conclusion……………………………………………………….….....287 CHAPTER 6 Conclusion & Future Directions……………….…………..290 6.0 Summary
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