Will privacy become a right?

What matters more to you, the right to privacy or the right to know?  Or is it even reasonable to believe these rights are in conflict with one another? While there is some dispute as to whether or not the 4th Amendment implies a constitutional right of privacy in the United States, it seems that we have generally believed that average citizens enjoy an expectation of privacy while public figures cede at least some of that right by choosing to become public figures.  Of course, even when it comes to public figures, it would be nice to see exposures of their folly constrained by a measure of decency and an assessment of social relevance; but human nature being what it is, sex scandal trumps insider trading every time.  Regardless, long gone are the days when we average Americans can remain passive spectators in the debate about how much privacy invasion is too much.

In this brief editorial on Slate, writer and Yale Law Fellow, Emily Bazelon cites a case in Germany where a court ruled in favor of a woman who wanted an ex-boyfriend to remove erotic photos and videos of her from his computer.  This comes a little less than a month after the European Court of Justice ruled that European citizens have a “right to be forgotten” online, giving individuals power to demand removal of personal data from companies like Google (which is to say Google).  Needless to say, Google was not happy about this ruling because asking that company to remove data is like asking Augustus Gloop to get his head out of Willy Wonka’s chocolate river.  True to form, the company resorted to the standard PR tactic of making its problems our problems, claiming that giving individuals this right to be forgotten chills free speech and threatens the public’s right to know about the very people (e.g. corrupt politicians) who deserve scrutiny.  These arguments are presumably directed at the American public, where we do in fact value free speech above principles of privacy, defamation, and slander.  Of course, the position could not be more hypocritical coming as it is from an elite crowd of billionaires whose dealings deserve much scrutiny and who are also exceptionally good at covering their own digital tracks.

To Emily Bazelon’s point, however, now that we’re all a little famous or could be made famous, or infamous, by way of communication as innocuous as a bullshit tweet to something more invasive and abusive like revenge porn, the question is whether or not we Americans will take a cue from Europe on the limits of speech when basic human decency is at stake.  For anyone who doesn’t know, revenge porn refers to libraries of erotic material captured or shared consensually between a couple, and after a breakup, the ex-boyfriend (so far, it’s the men) “shares” his collection of homemade erotic bits on a website that promotes this kind of material and, of course, monetizes it all with ad dollars.  Concerns over this type of use is one reason the woman in Germany likely sought to have the material removed from her ex’s computer, but even if he would not have done something as depraved as turn it into revenge porn, the case makes the point that once anything is recorded in the digital age, it’s a potential liability even if it isn’t broadly shared via social media.  We Americans may be used to a basic right of privacy; but it isn’t explicitly protected by law and so appears to be something we’re going to have to insist upon if we really want it.

In light of my recent post about automatic copyrights for non-professionals, it’s worth noting that the German court did not consider the ex-boyfriend’s copyright interests in the photos and videos to be more important than the rights of the woman depicted in these images.  The court made the determination that these media were not professional photos that were in any way related to the ex-boyfriend’s business and that no such business relationship existed with regard to the recording of the images.  As such, it seems like common sense and common decency to find in favor of the woman, although an American court might have ruled the other way. In that post, I made the case that Americans’ interest in automatic copyrights remains a functional hedge against private or corporate misuse of amateur media like personal photographs, and I stand by that position.  For instance, in a case in which the subject is also the photographer, copyright can and has been used (e.g. DMCA) to take down revenge porn. What’s interesting about the German ruling, though, is that the court ordered the media removed from the boyfriend’s possession despite the fact he had not done anything with the assets in the form of an inappropriate distribution.  The rationale suggests the plaintiff in this case has the right to remove even the potential of misuse by her ex rather than trust indefinitely that he won’t  have too many Mojitos one night and decide she broke his heart and deserves to be punished for it.

So, for what it’s worth, here’s one way in which copyright might be due for some nuanced reform in the digital age — that it should be bound by the rights of individuals who grant use of their likenesses in one context but not in all contexts — a right to be forgotten, if you will.  But you’re not going to hear the self-proclaimed copyright reformers from Silicon Valley make this argument.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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