Theoretically privacy, by the layman, is altogether quite straightforward. It is the choice and/or ability of an individual or group to selectively disclose or isolate themselves and/or information about themselves . Amongst scholars, policy makers and legislatures’, on the other hand, it is considered a much more convoluted notion. It is more easily known by its “messy precedents” and cannot easily be narrowed down as a legal concept alone but that of moral and social one (Keizer, 2012b; Nyst & Falchetta, 2017) . Privacy, on a global scale, is still a working definition, it is regularly in a state of fluctuation and differs throughout various jurisdictions, times and cultures. International conventions and agendas, like the United Nations General Assembly and Human Rights Councils’ declarations have, in the last few years, increasingly recognised its necessity and importance; and has advocated for its longevity as basic human right. According to them, it is a value and a right that underscores “human dignity” and the freedoms of association and speech (Keizer, 2012a; Santanen, 2018). As such in regards to the following proposed question “Should there be a global right to privacy in this digital age?”, simply put, yes, ideally there should be. The brief aforementioned assessment underscores need for stronger privacy laws. However the following paper will outline how, realistically, that this is not completely possible. This paper will set out to accomplish this by determining whether privacy can comprehensively actually exist in this digital age by looking at what it means for jurisdictional boundaries. And what implications globalisation and technology may bring if there is to be a universally recognised and possibly enforced global right to privacy.
In its most traditional form, privacy has been identified to be the legal and social protection of one’s property, space, and personal possessions (Mulligan, Koopman, & Doty, 2016). From the beginnings of the industrial revolution it has slowly expanded into the twentieth century to concern itself with differentiating the private from the public sphere. Particularly, it was concerned with preventing technological impairments on physical and tangible aspects of an individual’s private sphere (Schulhofer, 2016) . Warren and Brandeis (1890) stated that personal privacy corresponds with the fundamental right to enjoy life and any participation in the social contract is rather difficult to achieve without some form of personal privacy (Gavison, 1980). There is also then speculation to the extent of what harm has already befallen because of society’s naïveté to the implications technology is negatively had on their liberties. Santanen (2018) states that technology has already “[eroded] personal privacy” and society is at risk of devastating social relationships and interactionism . Furthermore it is emphasised that privacy being a self-governing concept means that any attempt to undermine it harms an individual’s personal freedom and individuality.
The purpose of safeguarding privacy in this ‘digital age’ is to ultimately protect the individual . And whilst nearly every country does, to an extent, recognise and appreciate this human right, the capacity to which it is legitimatised and appreciated by some (arguably like Australia) should be quite concerning for individuals (Privacy-International, Banisar, & Davies, n.d.). The subsequent revelations of mass surveillance, data mining and retention following September 11 by WikiLeaks and Edward Snowden, exposed these privacy safeguards and ‘protections’ to be flimsy and inadequate to even hold back a countries own intelligence services . Schulhofer (2016) underscores this with the turn of the century and September 11, as terrorism and global communications bought new challenges to privacy. And with the states priority to protect its citizens, privacy was left by the way side. Scholars have also speculated to how and why in this globalised digital world privacy controls are weakening instead of strengthening, and why individuals privacy is being infringed upon without their consent. Arguably, this is due to the exceedingly significant technological advancements, like the internet, to which privacy laws have been struggling to keep up and evolve with (Schulhofer, 2016). According to both Santanen (2018) and Solove (2010), this is because society hold certain ‘expectations’ for privacy and assumes its safeguards to be recognised when they really should be actively ‘desiring’ and advocating for it and memebers of a democracy should .
As mentioned, privacy is not universally accepted in law. But it has been compartmentalised into certain applicable components (autonomy, informational, organisational, and intellectual privacy) and enforced independently across various jurisdictions and countries (Zhao, 2014). For example in The Universal Declaration of Human Rights Privacy is concerned with:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.
Further reinforced by article 17 of the International Covenant on Civil and Political rights 1966 (ICCPR) and article 8 of the European Convention of Human Rights 1950 (ECHR) privacy is expanded on further to include it limits and scope whereby, it is acknowledged, that ones privacy is respected through separating the spheres of public and private. To satisfy the legalities of these international conventions as a signatory states must be able to demonstrate that their actions are in accordance with the law, are legitimate in their aim, and devised out of necessity and implemented proportionality (Zhao, 2014). In the U.S. the Supreme Court ratifies their commitment to the international conventions by imploring that privacy cannot be impeded upon without resounding consequence (Privacy-International et al., n.d.). The U.S also outlines the safeguarded components of their right to privacy to include the home, marital status and birth control. Australia, however is not as explicit, unlike the U.S.’ Bill of Rights, we uphold a number of statutes that protect particular activities and sectors (confidence, trespass and etc) but do have specific safeguards to enforce the human right to privacy (Joyce, 2015; Kampmark, 2014). It is assumed. Some states/territories do have specific laws that specify privacy but they arguably are inadequate and fall under the normal protection of common law. As of late there has been a growing reason within Australia for a tort of privacy especially with regards to the governments new data retention policy as evidence already exists that a policy like this does not achieve anything of value for national security (Joyce, 2015).
With the increased attention surrounding governments past covert mass surveillance, the UDHR has also come to recognise the challenges arising for privacy in this digital age (Nyst & Falchetta, 2017). One such challenge includes the jurisdictional ambiguity with cyber space. And with more personal information being stored online, like Australia’s new data retention policy or social media information, human security has become increasingly vulnerable. Other implications of the digital world mean that individuals cannot control their own information directly, individuals are also easily identifiable and the exact location of the information is unknown (Santanen, 2018; Schulhofer, 2016). There is the potentiality for misappropriation of an information (Santanen, 2018; Schulhofer, 2016; Solove, 2010). More so it breaches an individual’s confidentially and anonymity (Kampmark, 2014; Santanen, 2018; Schulhofer, 2016; Solove, 2010). There are some scholars that illuminate to the possibility of globally enforcing the human right by creating a mechanism like a multilateral agreement . A justification for its argument is the emphasis on having a unified global standard would see that no individual is discriminated against. For instance, in today’s political climate in regards to national security and the concern of terrorism would prevent the government overreaching in their authority unnecessarily. It would also ensures that states continues to upholds a rule of law. As noble as it sounds it does not come without potential implications. Schulhofer (2016) highlights that it is a threat against the very nature of democracy as it not only shifts all the power to the executive in regards to decisions of privacy but sidelines the judiciary. There is also a risk of threat such a proposal has to democracy. Schulhofer (2016) outlines that negotiating between democratic and non-democratic nation would arduous but would come a price. With some states compromising their perhaps already established precedents and policy. There is also the question too whether the negotiations be truly global, especially with the presence of many authoritarian regimes out there (Privacy-International et al., n.d.). More so, in regards to compromise, who from each country would answerable to this commitment? In the EU, it members are constantly changing and their view on privacy is vastly different to that of the U.S. whom are known to quite comprehensive in their policy’s. The U.S. also has special presidential powers meaning the ongoing of legislature and judiciary can be overridden by the president (Schulhofer, 2016). Australia, on the other hand, cannot decide what privacy actually is. Thus such an endeavour would not be uniform and would endanger the global society and communication. An alternative would need to be considered.
So, can privacy exist then? Specifically, with emergence and dependence society has on technology, whether that be social media or with storing and holding our personal information, how certain are we that it is being protected and no unduly accessed? The foremost issue is that today’s global society still does not entirely understand the comprehensive nature and the complexities of privacy. And as such it is difficult to conceptualise as it characteristics and legitimacies are endlessly in flux. It is also provoked by the various social and political attitudes and beliefs. In recent years, privacy has evolved from a once disregarded notion to concern for certain information to classified as sensitive and private to a global concern as it is championed by international conventions as a fundamental global human right. The concerns of privacy have been specifically in regards to the mass surveillance and the interception of communications by foreign and domestic government and/or third parties. The prospect of a united effort to ensure a global right to privacy is a lot more complicated than originally assumed. The concept faces jurisdictional ambiguity and risks the very foundations of democracy. Whist there should be a global right and one that it is adhered too. Achieving it will not be easy or if at all possible as not all countries, signatory or not, will unanimously agree to it. And may end up compromising their current protections rather than strengthen them.