The evolution of the right to protect privacy
30 November 2022
Is an individual’s personal information only private until it is made public?
Well, let’s put it this way: If this article had been written at the onset of the 2000s, with private individuals open to sharing the most intimate details of their thoughts, actions, whereabouts, and photographs, you may have been forgiven for answering yes to my opening question.
With technological advances at that time, sharing of personal information on public online spaces often seemed to take place without hesitation or much thought for the consequences that could follow this invasion of privacy.
Some of the first social networks, MySpace and Facebook, seemed borderless and impersonal in their infancy stage. The (perceived) faceless interface gave individuals a voice. While people were encouraged to share their voice, communities of likeminded individuals were constructed over time. And individuals’ personal details, along with their personalities, were profiled. This practice circled out worldwide in a short two decades.
Today, it is acceptable for a new job candidate’s digital footprint to be considered as part of the interview process. How they live their lives in the digital dimension and the profile they (choose to) share carries greater weight than a remarkable resume, at first glance. Also, digital data obtained can inform marketing strategies and alter business directions.
This has made me question whether the evolution of social media and the Internet killed the concept of privacy? Or has privacy never truly existed until now, and is the choice of whether to give up privacy or not up to the individual? Or is privacy perhaps a concept that has always been there, evolving, and that will continue to evolve slowly, alongside new social norms and technological uses, enough to warrant changes in regulations worldwide?
So, I set out to investigate these three questions:
The death of privacy
1984, a dystopian novel by George Orwell, was published in 1949. Inhabitants of the book’s fictitious superstate have no privacy in this imagined society, and as a result endure great suffering and injustice.
Was it a warning at the time?
Well, the book gave vision to what might transpire if nationalism, futurology, censorship, and surveillance legally governed society. Even thought is controlled by undercover agents of the ‘thought police.’
Was it probable that humankind would lose the right over their own personal information if the current state continued, just as it was possible in this fictitious book to lose the right to one’s own body and thoughts?
The social construction of privacy
An article I recently came across on Medium argues that privacy is the absence of public, and that it is up to individuals to carefully choose what they share with public entities. Given that the article appeared in 2017 at likely the height of social sharing on technology platforms, perhaps the author’s views may have been aligned to an earlier, and more elementary school of thought pertaining to how individuals are in charge of their sharing behaviour on digital platforms.
We could argue that just a couple of decades ago, malicious grand scale data breaches, such as the recent Omnicell breach, were unthinkable. The threat of what could go wrong if hackers were able to exploit our personal information was not part of our frame of reference.
As technology evolved, the potential for invasion became more revealing. Suddenly job seekers had to be mindful that it was possible for potential employers to consider information about their private lives on social platforms. It became obvious that the data that you chose to share with the world on social media now had the potential to cost you that dream job later.
But breaches may also lead to much larger scale injustices, such as identity theft, human or child trafficking, extortion, incitement of violence or interruption of business.
To answer the question posed by George Orwell’s 1984 of whether humankind would lose the right over their own personal information, we need to consider the individual’s right to freedom of expression (or sharing). However, protection of the privacy of individuals and society is paramount to this discussion.
As technology evolves, our collective understanding of its usage and pitfalls must continually evolve.
Privacy is lawfully recognised as an inherent right
In fact, it took over 130 years for the now buzz word, ‘privacy protection,’ to find a legal foothold in countries across the world. It all started with a scholarly article that appeared in the Harvard Law Review just before the turn of the century, which was written by Louis Brandeis and Samuel Warren.
The article published in 1890, The Right to Privacy, is recognised in Western cultures as one of the most influential essays to argue for an individual’s right to privacy. The authors argued that the common law had nurtured a new right, known simply as privacy, which demanded lawful acceptance.
Before, and after this publication, many commentators had stumbled over privacy and couldn’t agree upon a definition, as they tended to focus on defining privacy as a philosophical or moral concept.
"Political, social, and economic changes entail the recognition of new rights. The common law, in its eternal youth, grows to meet the demands of society," wrote Warren and Brandeis. In other words, the meaning of privacy is driven by historical events. Legal advances in other areas of the law were listed, such as the right to be protected from slander and libel, the right to protection of private property, and the right to protect the publication of one’s own labour, artistry and creativity. The law in these instances was designed to curtail suffering and anguish. Why should it not be the same outcome for the protection of privacy, or ‘the right to be left alone’?
In 1948, the United Nations adopted the Universal Declarations of Human Rights, an international step to lawfully affording the private individual with “the right to not 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.”
In 1995, the European Union adopted the Data Protection Directive, which regulated the processing of personal data within the EU. The Directive was replaced by the General Data Protection Regulation (GDPR) in 2018 – a breakthrough data protection regulation that has been hailed globally as a golden standard among data protection regulations.
South Africa’s Protection of Personal Information Act (POPIA) is no exception to the growing list of countries committed to upholding the right to protect information relating to an identifiable, living natural person and, where applicable, an identifiable company or other similar legal entity.
A continued journey
Yes, over the last few decades, technology platforms for social engagement and organisational productivity have been new and exciting. We have celebrated the rise of freedom of expression and the right to navigate better ways of working and doing business. However, the trade-off of such freedoms may lead to digital data exploitation.
On the road to safeguarding privacy, the journey is far from over. Protection of privacy is experimental in nature due to the evolving advancements in technology, and human interaction with said evolving technology. Still, the fact that individuals and organisations are increasingly privacy-savvy, and are prioritising the protection of data and personal information bodes well for the road ahead. A positive example of commercial change is organisations starting to use new privacy features of devices and apps to attract customers, e.g. Apple’s upgrade to its iPhone operating system.
I can’t help but think that Harvard Law Review authors Brandeis and Warren are sitting back proudly, looking down at humanity, as we are on the journey of lawfully enforcing the right to privacy.
I am encouraged that we are choosing a storyline where legal protection of individual privacy will make it harder and harder for suffering and harm to remain a threat to our society.