Balancing Privacy and Free Speech In an age of smartphones, Facebook, and YouTube, privacy may seem to be a norm of the past. This book addresses ethical and legal questions that arise when media technologies are used to give individuals unwanted atten tion. Drawing from a broad range of cases within the U., Australia, Europe, and elsewhere, Mark Tunick asks whether privacy interests can ever be weightier than society’s interest in free speech and access to infor mation. Taking a comparative and interdisciplinary approach, and drawing on the work of political theorist Jeremy Waldron concerning toleration, the book argues that we can still have a legitimate interest in controlling the extent to which information about us is disseminated.
The book begins by exploring why privacy and free speech are valuable, before developing a framework for weighing these conflicting values. By taking up key cases in the U. and Europe, and the debate about a “right to be forgotten,” Tunick discusses the potential costs of limiting free speech, and points to legal remedies and other ways to develop new social attitudes to privacy in an age of instant information sharing. This book will be of great interest to students of privacy law, legal ethics, internet governance, and media law in general.
Mark Tunick is Professor of Political Science at the Wilkes Honors College, Florida Atlantic University, where he teaches political theory and constitu tional law. degrees in Political Science and Management from MIT and his Ph. in Political Science from the University of California, Berkeley. Routledge Research in Information Technology and ECommerce Law Titles in this series include: Law of Electronic Commercial Transactions Contemporary Issues in the EU, US and China Faye Fangfei Wang Online Dispute Resolution for Consumers in the European Union Pablo Cortés The Current State of Domain Name Regulation Domain Names as Second Class Citizens in a Markdominated World Konstantinos Komaitis International Internet Law Joanna Kulesza The Domain Name Registration System Liberalisation, Consumer Protection and Growth Jenny Ng Law of Electronic Commercial Transactions, 2nd Edition Contemporary Issues in the EU, US and China Faye Fangfei Wang Cyberthreats and the Decline of the NationState Susan W.
Brenner Balancing Privacy and Free Speech Unwanted Attention in the Age of Social Media Mark Tunick Balancing Privacy and Free Speech Unwanted attention in the age of social media Mark Tunick An electronic version of this book is freely available, thanks to the support of libraries working with Knowledge Unlatched (KU). KU is a collaborative initiative designed to make high quality books Open Access for the public good. The Open Access ISBN for this book is 9781315763132. More information about the initiative and links to the Open Access version can be found at www.
First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Mark Tunick The right of Mark Tunick to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.com, has been made available under a Creative Commons AttributionNon CommercialNo Derivatives 4. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress CataloginginPublication Data Tunick, Mark, author.
Balancing privacy and free speech : unwanted attention in the age of social media / Mark Tunick. — (Routledge research in information technology and ecommerce law) Includes bibliographical references and index. ISBN 9781138791053 (hbk : alk. paper) — ISBN 9781315763132 (ebk : alk.
Social media—Law and legislation. Privacy, Right of. Freedom of expression.44’8—dc23 2014011165 ISBN: 9781138791053 (hbk) ISBN: 9781315763132 (ebk) DOI: 10.4324/9781315763132 To Daniel, Marilyn, Rachel, and Ralph, and the memory of Amy. Contents Table of cases x Acknowledgments xv 1 Introduction 1 Unwanted attention 1 The democratization of the media 2 Permissible and impermissible speech 7 Goals 9 Building a framework for addressing conflicts between privacy and free speech 9 Formulating principles of privacy ethics 13 Grounding privacy 14 Reevaluating case law 15 Distinguising ethical and legal judgments 18 The book’s layout 21 2 The value of privacy 23 Defining privacy 24 Why privacy is valuable 30 Reputation 31 Avoiding unjust punishment, and the “right to be forgotten” 33 Property 37 A lack of privacy is objectively harmful 41 Intimacy, relational harms, and the need to compartmentalize 44 No harm no foul? 47 Trust 51 Dignity and respect for persons 54 Privacy, toleration, and community 59 Summary 60 viii Contents 3 Legitimate privacy interests 62 Terminology: Legitimate privacy interests and reasonable expectations of privacy 63 The plain view principle, modified 65 Which means of observation are legitimate?—the Careful and Carefree societies 68 Qualifying the plain view principle 71 One may reasonably expect privacy when one’s dignity is implicated 74 One can have a legitimate privacy interest that information not be spread to circles wider than one willingly exposed oneself to 77 Controlling the intended audience of one’s message 81 Clarifying what counts as “readily accessible through legitimate means” 83 Consent 85 Conclusion: Privacy in public places 88 4 The value of free speech 90 Reasons free speech is valuable 90 Should interests in free speech be put on a balancing scale? The E.
95 The slippery slope objection to protecting only some speech 98 The speech that merits legal protection 102 Do legal protections of free speech apply only to professional journalists? 109 Deciding what is newsworthy 113 Substitutability (Finger and Kim Phuc) 121 Nonnewsworthy details of a newsworthy event (Y.) 123 Newsworthy for a select group, nonnewsworthy for the general public (Parnigoni) 124 Conclusion 127 5 Balancing privacy and free speech: Utilitarianism, its limits, and tolerating the sensitive 129 Introduction 129 The framework 130 Interests and rights 131 Balancing privacy against free speech (as opposed to public safety) 133 The utilitarian approach 134 Limits of a utilitarian approach 139 Feasibility problems 140 The respect and dignity problem 141 Contents ix Toleration and respect for persons 145 Weighing reasons and considerations without making a utilitarian calculation 153 6 Cases 157 Publicizing private facts 159 Private facts in private places (Rear Window, Lake v. WalMart) 159 Private facts that are newsworthy (Alvarado, Kaysen) 162 Private facts in public places (Upskirt videos, Dennison, Turnbull) 165 Cases at the border (Riley, Vazquez, and Wood) 173 Publicizing public facts 176 Public facts that are not newsworthy (the baseball fan) 176 Publicizing newsworthy public facts (public meetings and lectures, police conduct, arrests) 178 7 Remedies 187 Google Glass with face recognition 187 Remedies 189 New social norms 193 Legal remedies and their limits 194 Other alternatives 201 Technology and architecture 202 Market solutions and their limits 203 Conclusion 206 Bibliography 209 Index 217 Table of cases A v. B plc [2002] EWCA Civ 3377. General Motors Corp.
New York Times 449 N. Editions ViceVersa [1998] S. Washington Newspaper Publishing Co. and Bisney 34 Media L.
Superior Ct of L. Readers Digest Association, Inc. Superior Court of Santa Clara County 374 P. Entertainment Merchants Assoc.
County of Westchester 343 F. MGN Ltd [2004] UKHL 22 .10, 16, 62, 80, 95–7, 102, 122, 175, 176 Chief Constable of Humberside Police v. Information Commissioner [2009] EWCA Civ 1079. Federal Election Commission 558 U.159 Commonwealth of Massachusetts v.182 Table of cases xi Commonwealth v.
Shabazz Augustine 467 Mass.192 Cox Broadcasting Corp. Audigier et al. News Group Newspapers Ltd [2011] EWHC 1323. Oakland Tribune 188 Cal.
Hello! Ltd [2001] QB 967 .95 Dun & Bradstreet, Inc. Greenmoss Builders, Inc.12 Fair Housing Council of San Fernando Valley v. Omni Publications International 566 N.121 First National Bank of Boston v. Department of Highway Safety and Motor Vehicles 924 So.
Robert Welch, Inc. John Does 2014 WL 26075 (2014). Hearst Publishing Co. Demon Internet Ltd [1999] EWHC QB 244.
Agencia Española de Protección de Datos [2012] ECJ EURLex LEXIS 1014 .36 Google Spain SL, Google Inc. Agencia Española de Protección de Datos (AEPD), Maria Costeja González [2014] Case C131/12. Richie, et al.182 xii Table of cases Hoskings v.20, 80, 166 In re Application of the United States for Historical Cell Site Data 2013 WL 3914484 (2013) .192 In re January 11, 2013 Subpoena by Grand Jury of Union County 75 A.112 In re John Doe Trader No.79 In re Marriage of Tigges 758 N.85, 159 In re S [2003] EWCA Civ 963. Blue Mountain School District 650 F.
Wall Street Journal Europe SPRL [2007] 1 AC 359. Massachusetts State Police 492 F.182 Karhuvaara and Iltalehti v. Finland [2004] Case No. Welch and NYT Television 827 A.
Nathan Applebaum Holdings Ltd. WalMart Stores 582 N. The United Kingdom [2013] ECHR Case 240 29/07. Commissioner of the Metropolis [1979] 2 All ER 620.
Gruner + Yahr Printing and Pub.116 Metropolitan Intl Schools v.195 Metropolitan Intl Schools v. News Group Newspapers [2008] EWHC 1777. Big Pictures [2008] EWCA Civ 446.197 New York Times v.99, 103–4, 106, 127 Observer and Guardian v. The United Kingdom [1991] ECHR 49 .91 Obsidian Finance Group v.112 Obsidian Finance Group v.113 Table of cases xiii Oklahoma Pub.
Columba’s Nursery School 681 F. Bd of Educ. of the Mona Shores Publ. Metropolitan Police Commissioner [2004] EWHC 2229.
Secretary of State for Home Department [2010] UKSC 17. Commissioner of Police of Metropolis [2009] UKSC 3. Metropolitan Police Commissioner [2008] EWHC 1105 .89 Re NJ [2011] NIQB 122. Hamilton [2007] EWCA Crim 2062.
Philip Oliver [2011] EWCA Crim 3114. The Paladin Enterprises, Inc. MGN Ltd [2011] EWHC 2454. Rochester Folding Box Co.
Group W Productions 18 Cal. Chronicle Publishing Co. City of Cumming 212 F. Pendleton Detectives 88 So.159 Sports and General Press Agency, Ltd v.
‘Our Dogs’ Publishing Co.20, 92 State of Washington v.167 xiv Table of cases State v. Dennison 2012 WL 1580610 (Ohio App. Frost 92 Ohio App. Greater Manchester Police et al.
Borough of Pine Hill 916 A.179 The Law Society v. MGN Ltd [2002] EWHC 137.110 Too Much Media, LLC v. News Media Ownership Ltd [1986] 2 NZLR 716. News Group Newspapers Ltd [2001] 1 All ER 908.
News Group Newspapers Ltd [2010] HQ0004737 .69 Whiteland Woods LOP v. Township of West Whiteland 193 F. Commissioner of Police for the Metropolis [2010] 1 WLR 123. Jewish Hospital of St.120, 123, 124, 129, 138, 172 Acknowledgments My interest in unwanted attention solidified while preparing a paper about Dateline NBC’s “To Catch a Predator” program, in which men are lured by a decoy posing as an underage teen to what they believe is her house, and then are exposed on national television as “sexual predators.” One man could not bear this attention and fatally shot himself.
This convinced me that privacy interests can sometimes be more substantial than the interest the media has in reporting information it claims to be newsworthy. I first learned about this program from a student, and in many ways this book is a result of countless exchanges with students, colleagues, and a variety of audiences ranging from international baccalaureate students to lifelong learners with whom I have led discussions on the topic of privacy in the age of YouTube. I would like to acknowledge just a few of these individu als here: Jory Canfield, Rachel Corr, Seth Donahoe, Julie Earles, Andrew Faris, Jaclyn Goldstein, Lauren Gomez, Alan Gray, Alex Lange, Kevin Lanning, Claudel Louis, Rachel Luria, Maxwell MacEachern, Wesley Mathieu, Mumbi Ngugi, Alexa Robinson, Celine Rodriguez, Rachel Tunick, Meridith Wailes, and Daniel White.