Privacy is not dead…but what is it?

So the European Commission has finally officially released its Communication on a Comprehensive Approach to Data Protection in the European Union on 4 November, the accompanying press release emphasising that it was out to strengthen data protection rules.
This document is supposed to outline the strategy of the Commissioner Reding in this area, and is open for consultation until 15 January 2011.

As Brussels has been expecting it for a few months now, and even Statewatch leaked it a few weeks ago, I have decided to put on my lawyer hat when reading in the evening for the past months, and delve back into the intricacies of academic papers on privacy (scary stuff when you haven’t done it for a while).

My first confused idea was to look for the latest definition of privacy, as this is what the whole strategy is reported to be about.

The funny thing is that having gone through masterful articles and books excerpts by the likes of Solove, I am starting to have a picture of what privacy is not (or not only, or not any more) but it hasn’t truly helped me to figure out what it is.

So Privacy is…

Under European law, Article 8 of the Charter of Fundamental Rights sets out the right to privacy as follows:

If one were to do statistics, you would notice 6 lines of that Article set out what the right to privacy is,whilst 9 lines set out all the exceptions and limtyations to it…

Looking at everything that has been written about the subject (and if the number of pages were a criterion to attribute a value to a fundamental right than just going through all the pages written on this theme alone would make it a top of the list item), the following emerges:

  • To quote Solove in his attempt at “Conceptualising Privacy” (2002):

‘Currently, privacy is a sweeping concept, encompassing (among other things) freedom of thought, control over one’s body, solitude in one’s home, control over information about oneself, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations (…) The difficulty in articulating what privacy is and why it is important has often made privacy law ineffective and blind to the larger purposes for which it must serve. ‘

  • The fact that top down definitions seem unsatisfactory, leads Solove to conclude that conceptualising (and hence defining) privacy requires a bottom up, pragmatic approach , which basically assesses privacy in particular contexts and nearly on a case-by-case basis. Though this may be the right way to look at things from an academic and judicial perspective, it is simply unworkable if you are a company active online that needs to implement procedures, compliance systems and database controls and behaviours upfront (and thus not on a case-by-case basis). But where Solove is absolutely right is the fact that each individual’s understanding of privacy is unique to a certain extent, and shaped by culture and history. To give an example, I have absolutely no problem in sharing my mobile phone number with anyone that asks for it. It could be this is linked to the fact that I work as a freelancer but I don’t think so. In my perception, I have a lot more control over my mobile phone than I do over my fixed line: I switch off my mobile phone much more casually than I would unplug my fixed line, I have caller line identification on my mobile phone but did not take that option on my fixed line, I can easily put my mobile phone on ‘silent’ whereas I would not even know how to do that on my fixed handset…and I basically find it less intrusive to be called on my mobile phone than on my fixed phone. Many other people feel however completely different about sharing their mobile number, and consider it a very private element.
  • The public-private distinction is blurring and is certainly not something where two dissociated spheres can be easily identified. Quoting Solove once more:

    ‘First, the matters we consider private change over time. Second, although certain matters have moved from being public to being private and vice versa, the change often has been more subtle than a complete transformation from public to private.’

    But I will look more into that issue in a separate blog post.

A good illustration of these diverging answers is set out in the clip below, very aptly named “Is Privacy Dead or Just Very Confused? – SXSWi 2009”

The conclusion then seems to be that maybe the EU knows what it’s doing by focussing on personal data protection rather than privacy when it comes to asking for compliance and protection, especially in an online environment, privacy being a bit of a moving target. But then comes the next question: what is personal data and what is private Vs. public data in that context?

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