By Simon Davies
As readers will know all too well, a fiercely complex tension has existed for decades at the core of the privacy realm. It involves a constantly changing equation that determines the relationship between public interest and privacy rights. Put simplistically, it’s the line between my right to own or control my information, versus a demand by others to own or control it.
This complexity pervades almost every aspect of privacy and – of course – it involves not one line, but hundreds or even thousands. And as many of us become publishers on social media platforms, this complexity becomes even greater.
There are few areas of private life these days that one sector or another hasn’t laid claim to in the “public interest”. Epidemiologists want access to a vast swathe of health data. Historians seek biographical information, even on living people. And much of the media and law enforcement want just about everything they can lay their hands on. Then of course corporations of all types massively increase customer surveillance in the name of “improving the user experience” (and, it goes without saying, improving advertising revenue).
There is now such a vast spectrum of legal devices to enable disclosure that it many cases the logic of public interest was lost years ago in the white noise of the mechanics.
There is now such a vast spectrum of legal devices to enable disclosure that it many cases the logic of public interest was lost years ago in the white noise of the mechanics. Doctors have darkly giggled at the “All New Hippocratic Oath” which condemns disclosure of patient information “except in such circumstances as required by law, or where there is an overriding public duty to disclose, or where I am compelled to do so to a third party, or where there is a demand from others claiming a right to know the information, or where there is an exemption from the Data Protection Principles, or where there is a purported national security interest, or where the information is owned by the Crown, or where precedent demands disclosure, or in any situation where a regulation, ordinance, by-law, subpoena, or Statutory Instrument requires surrender of personal information, or in whatever circumstance the Government deems disclosure necessary or desirable.”
Disclosure even affects the deceased. Of course in many countries a person’s right to privacy ceases at death, though this is by no means a universal situation. In the US for example, some protection of the deceased exists for up to fifty years. Bulgaria and Estonia have similar provisions.
Privacy advocates and lawmakers constantly anguish over the interplay of rights and public interest. There is rarely a simple formula that can be applied. Disclosure in the public interest is often conditional. Sometimes disclosure is required by law and sometimes it is a matter of discretion and conscience. And over time those conditions may change in line with shifts in law and technology.
It’s one thing to theorise about this interplay and quite another to deal with it at a direct personal level. I had such an experience the other week when one of my former book editors approached me about the possibility of publishing my autobiography.
The publisher’s interest was “bringing the privacy issue to life” through a tapestry of personal stories. I certainly have enough of those, from death threats and corruption to political intrigue and board-room skulduggery.
Over the course of a couple of hours I took her on a thirty-year journey, recounting tales of confrontation with corrupt police forces and security agencies, wars with global corporations and battles with prime ministers.
The contract was in the bag, but try as I might, I couldn’t go through with it. It turned out that “bringing the privacy issue to life” would involve spilling the beans on private moments. That meant a direct conflict in most cases between the public interest and what the public is interested in.
For example, just after the funeral of Princess Diana on 1997, I received a request to meet her brother, Charles Spencer. At the time, Spencer had one of the most recognisable faces in the world and was the most enduring connection to the former princess. His moving eulogy at the recent funeral service had been seen by 2.5 billion people.
The “fact” of the meeting is a matter of record, but the contents were entirely private. Yes, there was – and perhaps still is – a public interest in what we discussed. I, however, could never be at liberty to disclose such things. Spencer was still in mourning at the time and the discussion would always rightly be personal. It’s a matter of humanity over public interest.
This of course does not imply that the contents of every such meeting should be private. For example, in 2006 following a bitter legal feud with the world’s biggest banking conglomerate, SWIFT, I had a turbulent meeting with the organisation’s CEO, Leonard Schrank. I decided to reveal what went on at that meeting because the issue at hand was live and it presented a clear and present danger to privacy. A secret deal stitched up in the Oval Office with the US president involving every bank in the world could not be ignored.
Contrast this situation with a private meeting I had in 2011 with Google’s CEO, Eric Schmidt. Google and I had been engaged in a very bitter and public battle for some years over its information practices. The feud had become bloody and notorious. Still, the discussion with Schmidt was entirely strategic – an attempt to resolve a complex and entrenched problem. Yes, there was still an element if public interest in disclosing its contents, but in my view this was trumped by the fact that no prior indication was given by either side that it would be made public.
The acid test in such matters should be whether a claim of public interest is merely a claim of interest.
Such distinctions are vitally important – and they become critically important for privacy advocates. Generally speaking, the privacy community is tuned into the need for transparency and disclosure – far more than urban myth may suggest. Even so, the equation can be complex. Many believe that a higher test of transparency should apply to individuals holding public office, as opposed to those people who are directly affected by the decisions of such people.
It is no easier to make such distinctions even if a person has passed on. Indeed, there’s a persuasive argument that the test of disclosure should be tougher because the deceased have no capacity to correct or contradict information.
The acid test in such matters should be whether a claim of public interest is merely a claim of interest. There is a world of difference.